Is the Prisoner's Character Indivisible?

1953 ◽  
Vol 11 (3) ◽  
pp. 377-394 ◽  
Author(s):  
R. N. Gooderson
Keyword(s):  
Common Law ◽  
The Other ◽  
Sexual Morality ◽  
The Common ◽  
The One ◽  
A Charge

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

La Participation des Facultés et Institutions de Recherche Européennes au Développement Juridique Africain.

1971 ◽  
Vol 15 (1) ◽  
pp. 13-40
Author(s):  
J. Vanderlinden
Keyword(s):  
Social Sciences ◽  
General Structure ◽  
Common Law ◽  
Comparative Law ◽  
The Other ◽  
African Continent ◽  
The Social ◽  
The Common ◽  
University Curricula ◽  
The One

SUMMARYThere are two aspects to this subject. On the one hand, one may investigate the background of the students for whom this teaching is intended. Some persons think that one must be concerned with courses aimed principally at Africans who are unable to attend university in their countries of origin; others think that such courses should be open to all who are interested in comparative law and should place African legal systems on the same level as those of the common law countries or Soviet law.On the other hand, experts in this field are divided on the question of the place which African law should occupy in the general structure of university curricula; in some people's view it is useful to distinguish the traditional law from the modern law, associating the former with the social sciences and the latter with law proper. Other specialists think that it is not possible to teach African law without first giving the student a solid grounding in the sociology, politics, and economics of the African continent.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?

2002 ◽  
Vol 61 (1) ◽  
pp. 87-125 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Common Law ◽  
The Other ◽  
Current Debate ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
True Meaning ◽  
The Common ◽  
The One

THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

Common Law and Constitutionalism in the Abortion Case

1993 ◽  
Vol 55 (3) ◽  
pp. 421-441 ◽  
Author(s):  
James R. Stoner
Keyword(s):  
Legal Status ◽  
Due Process ◽  
Common Law ◽  
The Other ◽  
Constitutional Interpretation ◽  
Planned Parenthood ◽  
The Common ◽  
The One ◽  
Abortion Case

The Supreme Court's 1992 abortion decision, Planned Parenthood v. Casey, an the Due Process liberty cases of which it is among the most recent, can be fully understood only by attention to the often-neglected common law dimension of American constitutionalism. The fracture on the Court in this line of cases follows a severing of two elements of common law adjudication: the rule of precedent, on the one hand, and the authority of tradition, on the other. The authors of the joint opinion in Casey craft a rationalized rule of precedent in the manner of the modern reinterpreters of the common law, such as Justices Holmes and Cardozo. The dissenters, by contrast, here and in related cases, seek to recover the legal status of tradition in constitutional interpretation.

Having discovered this fact, the defendant refused to deliver. A majority of the court held that the parties had contracted on the understanding that that the cow was incapable of breeding. Accordingly, there had been a mistake not merely as to quality, but as to the very nature of the thing sold. It was thought that there was as much difference between an ox and a cow as there was between the animal the plaintiff bought and the one which both parties believed to be the subject matter of the contract. The difficulty with Sherwood v Walker when compared with the reasoning employed in Bell v Lever Bros is that the former looks suspiciously like a case in which the court has rectified what amounts to little more than a bad bargain. One way of viewing the difference between Sherwood and Bell is that the cases reveal a policy conflict in the way different judges approach the issue of risk allocation. On the one hand, there is a market-individualist approach to cases of mistake which seeks to uphold the sanctity of contracts and will therefore result in only the smallest number of cases in which the courts will upset a bargain on the ground of a shared mistake. On the other hand, there are cases in which the courts are more prepared to consider notions of fairness and justice in determining whether a mistake invalidates an agreement. It is not surprising that this alternative approach has developed in equity rather than at common law, as a simple glance at the form of relief granted in each case reveals a substantial difference. The common law answer in cases of shared fundamental mistake is that the contract is void ab initio – the contract is treated as if it never existed. In contrast, the equitable solution is to order rescission of the contract, but on terms that attempt to do justice between the parties. Thus, it is possible in equity to order rescission of the contract but then to add a rider to the effect that there should be a renegotiation of the contract on terms which take account of the fact in respect of which the parties were mistaken. In Solle v Butcher, the defendant leased to the plaintiff a flat. Both parties believed that the relevant property was not covered by the provisions of the Rent Restriction Acts, with the result that the defendant could charge a rent of £250 per annum. However, it later transpired that the relevant legislation was applicable with the result that the maximum rent payable was only £140. Such a mistake would not have been operative at common law, but the court held that the contract was voidable in equity, provided there was a fundamental mistake and no fault on the part of the person seeking relief: Solle v Butcher [1950] 1 KB 671, CA, p 690

1995 ◽  
pp. 324-330
Keyword(s):  
Common Law ◽  
The Other ◽  
Risk Allocation ◽  
Policy Conflict ◽  
Relevant Property ◽  
Alternative Approach ◽  
The Subject ◽  
The Common ◽  
The Difference ◽  
The One

Unjustified Enrichment in Comparative Perspective

2019 ◽  
pp. 960-993
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Comparative Perspective ◽  
Unjust Enrichment ◽  
The Future ◽  
The Common ◽  
The One ◽  
Level Of Understanding ◽  
Unjustified Enrichment

The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

The Devil's Daughter of Hell Fire: Anger's Role in Medieval English Felony Cases

2016 ◽  
Vol 35 (1) ◽  
pp. 155-200 ◽  
Author(s):  
Elizabeth Papp Kamali
Keyword(s):  
Cultural Context ◽  
Methodological Approach ◽  
Common Law ◽  
The Other ◽  
Other Hand ◽  
Legal Texts ◽  
Different Types ◽  
Sorting Process ◽  
The Common ◽  
The One

During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.

Two Paradoxes in the Recognition of Foreign Judgments

1967 ◽  
Vol 2 (2) ◽  
pp. 197-209 ◽  
Author(s):  
A. V. Levontin
Keyword(s):  
Common Law ◽  
17Th Century ◽  
The Other ◽  
Absolute Truth ◽  
Res Judicata ◽  
The Common ◽  
The Absolute ◽  
The One ◽  
New Evidence

An oft-repeated proposition asserts that fraud “vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal”. Fraus omnia corrumpit. That great master of the common law, Willes J., said in 1863: “…a judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding.”Nevertheless, such declarations cannot be accepted without reservation. Let us illustrate. A man sues for detention of his goods. The defendant asserts that plaintiff's case is a concocted deception; that the documents are forged and that the plaintiff himself and his witnesses are deliberately perjuring themselves. The defendant maintains, in fact, that the goods in question are, at the very time of trial, being concealed by the plaintiff. The court goes fully into the testimony, rejects the allegations of perjury and fraud, and awards the plaintiff damages. The absolute truth will perhaps never be known. What we do know is that the unsuccessful defendant is henceforth estopped by res judicata. He cannot resist the effect of the judgment, still less can he set it aside, unless he can avail himself of fresh evidence, discovered since the trial; and unless, moreover, he can satisfactorily account for not having known this evidence and made use of it at the trial. This has been clear law since at least early in the 17th century when it was expressly laid down by Bacon L. C. Indeed, the need for new evidence furnishes a major distinction between impeachment (or “review”, as it is also called) of a judgment, on the one hand, and an appeal proper, on the other. This distinction is further reflected in the rule that appeals must be lodged within a prescribed period of time—not so impeachments or reviews.

scholarly journals «Welfare state» versus ideological matrix of «monetary civilization» (about the problem of state construction in present-day Russia)

2016 ◽  
Vol 3 (3) ◽  
pp. 53-62
Author(s):  
M G Abramova
Keyword(s):  
Welfare State ◽  
Common Law ◽  
The Other ◽  
Nation State ◽  
Ethical Values ◽  
World Picture ◽  
State Construction ◽  
The Common ◽  
The One

The author offers a thorough analysis of the politico-legal component of capitalism and arrives at the conclusion that its foundations are based on the legal, moral, ethical values and political concepts of Western Christianity. It was liberal ideologists who borrowed the ideas about the so-called «sacred» role of monies and denial of the nation-state concept from this world picture where the ‘common law’ played the central role. The author juxtaposes this ideological matrix of the ideocratic state concept tabled by Russian Eurasian philosophers (on the one hand) and the doctrine set forth by the neoliberal law experts at the beginning of the XX century with their idea of «a welfare state» (on the other hand).

scholarly journals THE COMPARATIVE LEGAL HISTORY OF LIMITATION AND PRESCRIPTION

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eltjo Schrage
Keyword(s):  
Legal History ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Legal Systems ◽  
Oliver Wendell Holmes ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The One

Within both the civil law and the common law (as well as in mixed legal systems), there are means of acquiring and losing rights, or of freeing ourselves from obligations with the passage of time. The reason for this is at least twofold: on the one hand, for a claimant, a dispossessed owner or a creditor, limitation and prescription provide stimuli for bringing the action; on the other, this sanction upon the negligence of the claimant implies in many cases a windfall for the defendant. If a creditor is negligent in protecting his assets, the law at a certain stage no longer protects him or her. As Oliver Wendell Holmes, Jr. said aptly some 100 years ago: “Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”.

A Reconsideration of Possessio

1956 ◽  
Vol 14 (2) ◽  
pp. 235-247
Author(s):  
R. W. M. Dias
Keyword(s):  
Common Law ◽  
The Other ◽  
Present Writer ◽  
Roman Law ◽  
Physical Control ◽  
The Common ◽  
The One ◽  
The Right ◽  
What Matters

The literature on possessio has now assumed such proportions that it will require a volume at least to do anything like justice to it. The purpose of this article is only to outline an approach to the Roman law of possessio as suggested by Kocourek's analysis of possession in the common law. The present writer believes that a substantial similarity exists between these two great systems in their approach to possession and this has not been due to any borrowing by the one from the other: a fact which, if proved, should be of no little jurisprudential interest. It is, therefore, merely as a prologue to a fuller exposition elsewhere that the following contentions are advanced as to possessio in Roman law.Kocourek, writing of the common law, maintained that “possession” as a juridical concept distinct from physical control on the one hand and the right to have physical control on the other was unnecessary. If a person actually holds a thing, he either has a right to continue holding it or he has no right; if he is not holding a thing, he either has or has not a right to hold it. In all cases what matters is the right to have physical control. As long as the term “possession” is confined to physical control, no harm is done, but what Kocourek objects to is that mysterious tertium quid, called “possession,” from which are distinguished both physical control and the right to it, the former being known variously as “de facto possession,” “custody,” “detention,” and the latter as the “right to possess.”

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