Personal Actions in the High Court of Battle Abbey 1450–1602

1992 ◽  
Vol 51 (3) ◽  
pp. 508-529 ◽  
Author(s):  
J.H. Baker
Keyword(s):  
Early Modern ◽  
Great Increase ◽  
Common Law ◽  
Late Medieval ◽  
High Court ◽  
Royal Courts ◽  
Legal Thinking ◽  
The Common ◽  
Local Courts ◽  
The Relationship

The relationship between the jurisdictions of local courts and central courts in late-medieval and early-modern England remains largely unexplored. It is nevertheless important to an understanding of the development of the common law, because of the prevailing notion that the great increase in litigation in the royal courts in the early Tudor period was connected with a decline in the use made of local courts. A massive transfer of business to the centralised royal courts might have affected the common law in ways other than the purely numerical, in that it could have brought a reception of legal ideas and remedies already well known out in the country. On that footing, the appearance of new kinds of action in the central courts at this period may represent transfers of jurisdiction rather than changes in legal thinking.

English Law and its Expansion

2018 ◽  
Author(s):  
Ken MacMillan
Keyword(s):  
Seventeenth Century ◽  
Early Modern ◽  
Common Law ◽  
Early Modern England ◽  
Legal Systems ◽  
Pluralistic Society ◽  
Unique Character ◽  
Royal Courts ◽  
Settler Societies ◽  
The Common

Early modern England was a legally pluralistic society. The laws of the Crown derived from its royal prerogative rights, which were based on Roman and common law. The Crown’s excessive use of prerogatives often came into conflict with the English Parliament and the royal courts of common law. This conflict resulted in constitutional crises throughout the seventeenth century and, ultimately, in the ‘Westminster system’ of government by 1800. Alongside the common law and its many courts operated several other brands of law, especially criminal, Roman, canon, and equity law, which were designed to adjudicate in areas where the common law proved insufficient, or when non-domestic matters were involved. These various brands of law were transported, by royal and later parliamentary authority, into the English empire. This transfer resulted in legal systems that reflected those used in England, while also respecting the unique character of individual settler societies.

Why Does the Common Law Conform to the Constitution?

2021 ◽  
pp. 0067205X2110398
Author(s):  
Joshua Sheppard
Keyword(s):  
Common Law ◽  
Judicial Power ◽  
High Court ◽  
State Action ◽  
The Common ◽  
The Relationship

The High Court has often said that the common law must conform to the Constitution. The High Court has not completely explained why this is so. This requirement is not explicitly mentioned anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is that the Constitution is the supreme law and binding on everyone. Another suggestion has been that the common law must conform because the Constitution constrains 'state action': something more than just an exercise of constitutionally conferred power. This latter explanation appears to deviate from the High Court's exposition of the common law's relationship with the Constitution in Lange v Australian Broadcasting Commission. This article suggests that the Constitution has a broader application to the common law, in that it constrains all uses of judicial power, not just those that are considered to be ‘state action’. It contends that it is implicit in s 71 of the Constitution that the power to develop the common law yields to constitutional imperatives. This theory is more descriptively consistent with the High Court's practice and observations about the relationship between the common law and the Constitution.

scholarly journals Common Law Scholarship and the Written Word

2017 ◽  
Author(s):  
Ian Williams
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Legal Scholarship ◽  
Inns Of Court ◽  
The Common ◽  
Written Word ◽  
The Relationship

This chapter considers early modern common law scholarship both in the Inns of Court and outside of them. It investigates the relationship between oral scholarship in the Inns, manuscript, and printed texts. The sixteenth and seventeenth centuries have been identified as the period in which the common law changed from a system of predominantly oral learning to one based primarily on texts. Particular attention is paid to the issue of the circulation of legal scholarship, particularly in manuscript, the possibility of scribal production, and the limits on such circulation. The chapter also considers the purpose(s) behind certain forms of scholarship, such as patronage, and the textual sources used by common lawyers.

The Trade Mark, Other Product Designations, and Goodwill

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Subject Matter ◽  
Common Law ◽  
Trade Mark ◽  
Geographical Indication ◽  
Passing Off ◽  
Rights Protection ◽  
Essential Properties ◽  
The Subject ◽  
The Common ◽  
The Relationship

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

Custom in Late Medieval France

2021 ◽  
pp. 29-63
Author(s):  
Marie Seong-Hak Kim
Keyword(s):  
Legal History ◽  
Political Power ◽  
Common Law ◽  
Roman Law ◽  
Legal Tradition ◽  
National History ◽  
Late Medieval ◽  
Dynamic Movement ◽  
Medieval France ◽  
The Relationship

The idea of the dynamic movement of law—diffusion of legal institutions, rules, and culture—is deeply embedded in European legal history since antiquity. All the while, a potent spirit of local custom has sustained national history, forming an equally integral part of Europe’s legal tradition. This chapter examines the sources of law in late medieval France and the doctrine of custom. It also discusses the growth of royal justice and the relationship between private law and political power. An overview of major historiographical debates concerning the theory and nature of custom sheds light on the question as to whether the notion of common law (droit commun) emerged autonomously in France or only after custom was written down on the model of Roman law as jus commune.

9. Mental conditions, intoxication and mistake

2021 ◽  
pp. 292-358
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
External Factor ◽  
Criminal Responsibility ◽  
Common Law ◽  
Burden Of Proof ◽  
Mental Condition ◽  
Individual Actor ◽  
The Common ◽  
The Individual ◽  
The Mind ◽  
The Relationship

This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

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