Prospective Revision of Precedent

1973 ◽  
Vol 8 (2) ◽  
pp. 173-196 ◽  
Author(s):  
G. Tedeschi
Keyword(s):  
Common Law ◽  
Case Law ◽  
General State ◽  
The Public ◽  
Judicial Decisions ◽  
Retroactive Effect ◽  
The Future ◽  
The Common ◽  
Do So

Innovations in case law have traditionally always had retroactive effect also, first on the case in question, and therefore on past conduct, and then, to the extent that authority attaches to the precedent or it is at least followed in practice, on other cases subsequently heard, although the conduct involved here also preceded the declaration of the new rule. Justice Holmes, in a dissenting opinion of 1910, wrote: “I know of no authority in this case to say that in general state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years”.It is fairly certain that Justice Holmes had the Common Law world in mind, but the picture would not be different if we looked at the situation elsewhere. In France as well, for instance, the rétroactivité des nouvelles jurisprudences has been considered as une infirmité du système jurisprudentiel.Nevertheless, it is a fact that the situation excites some consternation among lawyers and the public, which is particularly strong in those matters where retroactivity is singularly severe in its effects and the legislature normally refrains from imposing it, although not forbidden to do so under constitutional principles (laws being interpreted and applied non-retroactively in the absence of any express provision in this regard) and in those instances where there was reliance, explicit or presumed, by the parties on the rule which is subsequently abandoned.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

Professional Status and the Freedom to Contract: Toward a Common Law Duty of Non-Discrimination

2001 ◽  
Vol 14 (1) ◽  
pp. 79-132 ◽  
Author(s):  
Amnon Reichman
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Case Law ◽  
Professional Status ◽  
The Public ◽  
Goods And Services ◽  
The Core ◽  
The Common

This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer’s group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a duty to provide equal service. It argues that at the core of the rationale that best fits these bodies of case law is a status-based demand placed on those interacting in their capacity as members of an impersonal profession to refrain from taking into account any personal or group-based characteristics beyond those relevant to the provision of goods and services around which the profession is organized.

scholarly journals Revisiting the Public Right to Fish in British Waters

2011 ◽  
Vol 26 (3) ◽  
pp. 433-461 ◽  
Author(s):  
Richard Barnes
Keyword(s):  
Common Law ◽  
Political Agenda ◽  
The Political ◽  
Future Issue ◽  
The Public ◽  
Management Regimes ◽  
The Future ◽  
The Common ◽  
The Right ◽  
Public Right

AbstractThe public right to fish is a creature of the common law. It underpins the statutory regime of fishing in England, and has influenced fisheries in other common law jurisdictions. With reform of fisheries on the political agenda, it is useful to consider the nature and extent of this right. By exploring and articulating the nature and extent of the right, its role in shaping the future regulation of fisheries in British waters can be better understood. This may become a future issue, especially when attention is already being devoted to the regulation and, perhaps more importantly, to the allocation of fisheries under management regimes that rely upon rights-based mechanisms.

scholarly journals How Common is the Common Law? Some Differences and Similarities in British and American Superior Court Decisions

2015 ◽  
pp. 59
Author(s):  
Marion Charret Del-Bove ◽  
Laurence Francoz-Terminal
Keyword(s):  
Common Law ◽  
Case Law ◽  
Court Decisions ◽  
Common Language ◽  
Legal Tradition ◽  
Law System ◽  
Common Features ◽  
Judicial Decisions ◽  
American Law ◽  
The Common

American law and English law belong to the same legal tradition, the common law, characterized by a case-law system based on judicial decisions and the rule of precedent. There are indeed common features between the American and the English common law systems. There is a common language with close expressions, but also similar concepts, principles and procedures. But how common are in fact the American and British legal systems? This paper aims at finding some possible answers through a legal and linguistic analysis of some US and UK superior court decisions.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The Future of the Common Law

1913 ◽  
Vol 13 (7) ◽  
pp. 595
Author(s):  
Robert Ludlow Fowler
Keyword(s):  
Common Law ◽  
The Future ◽  
The Common

scholarly journals ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW

2016 ◽  
pp. 0-0
Author(s):  
Роман Рыбаков ◽  
Roman Rybakov
Keyword(s):  
Common Law ◽  
Case Law ◽  
Historical Method ◽  
Property Relations ◽  
Legal Method ◽  
The Common ◽  
Legal Fictions ◽  
Interpretation Method

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

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