Codification and Consolidation of the Law at the Present Time

1979 ◽  
Vol 14 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Denis Tallon
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
German Law ◽  
The Other ◽  
Law Reform ◽  
Jeremy Bentham ◽  
Historical School ◽  
The World ◽  
The Subject ◽  
The Common

Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.

‘Furiously Mad’: Vagrancy Law and a Sub-Group of the Disorderly Poor

Rural History ◽  
2013 ◽  
Vol 24 (1) ◽  
pp. 25-40 ◽  
Author(s):  
AUDREY ECCLES
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Social Problem ◽  
Common Law ◽  
Medical Texts ◽  
The Public ◽  
Course Of Action ◽  
The Subject ◽  
The Common ◽  
The Law

Abstract:Madness has been a social problem from time immemorial. Wealthy lunatics were made royal wards so that their estates would be looked after, and the common law very early admitted madness and idiocy as conditions justifying the exemption of the sufferer from punishments for crime. But the vast majority of lunatics have never been either criminal or wealthy, and many wandered about begging, unwelcome in any settled community. Finally, in the eighteenth century, the law made some attempt to determine a course of action which would protect the public and theoretically also the lunatic. This legislation and its application in practice to protect the public, contain the lunatic, and deal with the nuisance caused by those ‘disordered in their senses’, form the subject of this article. Much has been written about the development of psychiatry, mainly from contemporary medical texts, and about the treatment of lunatics in institutions, chiefly from nineteenth-century sources, but much remains to be discovered from archival sources about the practicalities of dealing with lunatics at parish level, particularly how they were defined as lunatics, who made such decisions, and how they were treated in homes and workhouses.

Comparative Perspectives

2020 ◽  
pp. 740-776
Author(s):  
Kenneth G C Reid ◽  
Marius J de Waal ◽  
Reinhard Zimmermann
Keyword(s):  
South America ◽  
Common Law ◽  
Civil Law ◽  
Far East ◽  
Family Members ◽  
The Other ◽  
Judicial Discretion ◽  
The World ◽  
The Common ◽  
Financial Need

Today freedom of testation is qualified, in most countries of the world, by a degree of mandatory family protection. Broadly speaking, that protection can be delivered either by a system of fixed shares (such as forced heirship or compulsory portion), or by the court-based discretionary system which is often known as ‘family provision’. In fixed-share systems, certain family members (especially the surviving spouse and children) are protected merely because they are family members; in discretionary systems there is often an additional requirement of financial need. Fixed-share systems dominate in the civil law countries of Europe, South America, and the Far East as well as in Islamic countries and the Nordic countries; discretionary systems are found mainly in England and in the common law world more generally. The range of potential beneficiaries varies from system to system and country to country, but today includes the surviving spouse and children as well as, often, civil partners, cohabitants and even dependants. Each system has opposing strengths and weaknesses: fixed-share systems are predictable but inflexible; discretionary systems are flexible but unpredictable. Each system has sought various means to temper its weakness. Amidst general satisfaction with mandatory family provision, there have also been reforms and calls for more reform. In fixed-share systems there is support for moving, in whole or in part, to a system of judicial discretion. There is little demand, in discretionary systems, for a move in the other direction.

The use and abuse of taxonomy

Legal Studies ◽  
2009 ◽  
Vol 29 (3) ◽  
pp. 355-375 ◽  
Author(s):  
Kelvin FK Low
Keyword(s):  
Common Law ◽  
The Other ◽  
Late Professor ◽  
Untimely Death ◽  
The Subject ◽  
The Common

The late Professor Birks made an immense contribution to the study and development of the common law in devising his taxonomy, derived from the Roman classification of Justinian's Institutes. The utility of the taxonomy has always been the subject of controversy and its value has been increasingly questioned since his untimely death. Some of the criticisms are undoubtedly valid but it is seriously arguable that the pendulum has swung too far in the other direction. This paper seeks to highlight the common abuses of the taxonomy and demonstrate that, even taking account of its limitations, the taxonomy continues to be a useful device for our study and development of the common law.

Jewish Law of Warranties: Some Comparative Aspects

1975 ◽  
Vol 10 (1) ◽  
pp. 102-130
Author(s):  
Irwin H. Haut
Keyword(s):  
Jewish History ◽  
Common Law ◽  
Great Part ◽  
The Other ◽  
Jewish Law ◽  
Interested Reader ◽  
Extensive Discussion ◽  
The Subject ◽  
The Common ◽  
Case Basis

Aspects of Jewish Sales Law which may be referred to as the law of warranties are the subject of this article. Only the sale of personalty is dealt with and comparison is made with parallel developments in American Sales Law.The temptation to engage in extensive discussion of the sources of Jewish Law and of its nature and developments has been resisted and only some brief preliminary remarks concerning Jewish Law have been included but the interested reader is referred elsewhere for further discussion of these matters.Unlike the Common law, which developed on a case to case basis, Jewish law developed along several lines. Jewish law developed in part on a case to case basis as exemplified by Talmudic discussions and expositions; in part in an enormous and still growingResponsaliterature; and in the decisions of Rabbinical Courts throughout Jewish history. On the other hand, the development of Jewish law depended in great part on various Codes, the most important for our purposes being those of Maimonides, Asherides and Karo.

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

Punitive Damages in Contract

1988 ◽  
Vol 1 (1) ◽  
pp. 87-104 ◽  
Author(s):  
David E. R. Venour
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Contract Law ◽  
The Other ◽  
Punitive Damages ◽  
New Developments ◽  
Boundary Wall ◽  
General Law ◽  
The Common ◽  
The Law

As the Writ System that prevailed in England until the nineteenth century defined particular rules and procedures for each Form of Action, so today our modern causes of action take to themselves a host of idiosyncratic details. Until recently the common law had long conceived of tort and contract law not as parts of a general law of obligation but as separate bodies of rules divided by a boundary wall that kept each from invading the territory of the other. New developments in the law have breached this wall in places and allowed tort to intrude into domains traditionally ruled by contract. But this process is far from complete, and many differences still remain between actions in contract and tort.

The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?

1968 ◽  
Vol 7 (2) ◽  
pp. 1-10 ◽  
Author(s):  
Ralph V. Turner
Keyword(s):  
Nineteenth Century ◽  
Legal History ◽  
Common Law ◽  
Traditional Teaching ◽  
Anglo Saxon ◽  
Historical School ◽  
German School ◽  
The Common ◽  
Fact Finding ◽  
King Alfred

Serious study of the origins of the jury began in the time of William Stubbs and F. W. Maitland, when the work of the German historical school of jurisprudence reached England. Until then knowledge of the medieval English jury before the time of Henry II had been more legendary than real. William Blackstone had traced the common law to a compilation that King Alfred supposedly commanded to be made. Blackstone had written in his Commentaries on the Laws of England, “Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is that they were in use among the earliest Saxon colonies.”In the mid-nineteenth century the Anglo-Saxon origin of the jury was still a popular legend in England, but the German school of legal history sought a more scientific study of the problem. A representative of that group, Heinrich Brunner, in his book, Die Entstehung der Schwurgerichte, rejected the traditional teaching that the jury was Germanic and popular in origin. Instead, he believed it to be royal in origin, an authoritarian means of gathering information, particularly information of a financial nature. It first appeared as the inquest of the Frankish kings, inherited from the imperial Roman fisc. It passed from them to the Norman dukes and then was introduced to England with William. According to Brunner the Norman kings reserved this fact-finding technique for themselves, extending it to their subjects in only a few cases.

De-Finition

2019 ◽  
Vol 95 (2) ◽  
pp. 231-245
Author(s):  
Erik Ode
Keyword(s):  
Educational Research ◽  
The Other ◽  
Political Perspective ◽  
The World ◽  
The Subject ◽  
Scientific Terms

Abstract De-Finition. Poststructuralist Objections to the Limitation of the Other The metaphysic tradition always tried to structure the world by definitions and scientific terms. Since poststructuralist authors like Derrida, Foucault and Deleuze have claimed the ›death of the subject‹ educational research cannot ignore the critical objections to its own methods. Definitions and identifications may be a violation of the other’s right to stay different and undefined. This article tries to discuss the scientific limitations of the other in a pedagogical, ethical and political perspective.

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

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.

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