Oaths, Witnesses and Modern Law

1991 ◽  
Vol 4 (01) ◽  
pp. 67-100 ◽  
Author(s):  
Myron Gochnauer
Keyword(s):  
Common Law ◽  
Judicial System ◽  
Judicial Power ◽  
Theoretical Discussion ◽  
Judicial Interpretation ◽  
Canadian Law ◽  
Generating Capacity ◽  
Moral Power ◽  
Moral Dimensions ◽  
The Common

In the common law world the oath has long provided one way of ensuring that trial witnesses tell the truth. The moral power of the oath supplements the judicial power of perjury laws. But unlike laws forbidding perjury, the oath cannot be used automatically. Through ignorance, belief or conscience a person may be incapable of meaningfully swearing an oath. Over the years there have been many legislative enactments and judicial pronouncements which sought to clarify conditions for the use of the oath and establish alternatives to it. With increasing secularization of society, the traditional ground rules have required modification. Because there has been little serious, theoretical discussion of the nature of the oath, these modifications have often exhibited inadequate understanding of the moral dimensions of the oath. As a result, judicial discussion has reached an impasse. In January, 1988 Bill C-15 became law. It contained yet another attempt to satisfactorily harness the power of the oath to the needs of the judicial system. The interpretation of this new legislation will offer excellent opportunities to eliminate some of the confusion surrounding the oath in Canadian law. This paper will analyze the nature of the oath with special attention to its obligation-generating capacity. The analysis developed here may help provide the understanding necessary for sensible judicial interpretation and reform.

Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate

2010 ◽  
Vol 11 (6) ◽  
pp. 656-670
Author(s):  
Kate Sutherland
Keyword(s):  
Academic Freedom ◽  
Common Law ◽  
Scholarly Work ◽  
Academic Journal ◽  
Canadian Law ◽  
The Common ◽  
The Impact ◽  
Defamation Law

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?

2019 ◽  
Vol 12 (2) ◽  
pp. 115-138
Author(s):  
Christopher Phiri
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Judicial Power ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Common ◽  
The Law

Abstract On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.

European Perspectives on a Judicial Appointments Commission

2004 ◽  
Vol 6 ◽  
pp. 35-54
Author(s):  
John Bell
Keyword(s):  
Common Law ◽  
Critical Assessment ◽  
Judicial System ◽  
England And Wales ◽  
Judicial Appointments ◽  
European Experience ◽  
The Common

The natural models for English debates on judicial appointments have been from the common law. Although England and Wales remain very much within the common law world and its problems, we are increasingly drawn into a European world, where many of our ideas and standards are shaped by our participation in European agendas. There are important lessons to be learnt from European experience in this area. Based on that European experience, one can see a tension between the desire to give the judiciary greater independence from the executive and the practice of leaving the judiciary increasingly in charge of the processes of appointment and management of the judicial career and, even, of the judicial system itself. These tensions are much stronger in many other parts of Europe and these may serve as useful points of reference. There is an emerging European judicial model to which English debates are now referring, but which needs critical assessment.

scholarly journals De la lex scantinia aux récents amendements du Code criminel: homosexualité et droit dans une perspective historique

2005 ◽  
Vol 25 (4) ◽  
pp. 777-800
Author(s):  
Robert Demers
Keyword(s):  
Common Law ◽  
Criminal Code ◽  
Roman Law ◽  
Medieval Period ◽  
Deviant Behaviour ◽  
Individual Behaviour ◽  
Canadian Law ◽  
The Common ◽  
Political Turmoil ◽  
And Control

This paper deals with the legal approach to homosexuality throughout history, focussing on Roman law, French law up to the Revolution, English law till the mid-60's and finally, Canadian law from the French period up to the amendments to the Criminal Code in 1969. What lessons can be drawn from this analysis? A first conclusion is the increasing intolerance towards homosexuals as evidenced by laws that become more and more preoccupied with private morality and control of individual behaviour. Here, we notice the inverse trend in the Roman law tradition and the common law one, where cultural and religious differences explain much of this curious evolution. A second conclusion is the link established between deviant behaviour and all forms of « deviance » from official policies-thus, accusations of homosexuality are to be found in troubled periods of religious (heresies) and political turmoil. Finally, one notes that although the Medieval period is often considered as being particularly cruel in its treatment of homosexuals, this view would need important qualifications in light of the 20th century treatment of such persons, witness of course, the Nazi extermination.

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

Welfare, Asylum and the Politics of Judgment

2009 ◽  
Vol 39 (1) ◽  
pp. 119-138 ◽  
Author(s):  
LYDIA MORRIS
Keyword(s):  
Human Rights ◽  
Case History ◽  
Common Law ◽  
Policy Impact ◽  
Judicial Interpretation ◽  
Home Office ◽  
Political Dialogue ◽  
Human Rights Act ◽  
The Common ◽  
Developing Area

AbstractThis article examines 14 judgments over a ten-year period of challenge to the removal of welfare support from ‘late claimers’ for asylum. The case history spans a period of transition in Britain from the general principles of the Common Law to the implementation of the Human Rights Act (HRA) (Home Office, 1998), but indeterminacy is to the fore in such a developing area of law, allowing considerable scope for judicial interpretation. The focus of this article is therefore the cumulative dynamic of the judgments, their strategic delivery and their policy impact. The analysis demonstrates the force of general principles in yielding a solution, while also providing evidence of judgment as political dialogue over competing visions of society.

scholarly journals THE BASIC ELEMENTS OF THE TESTAMENT IN THE ENGLISH LEGISLATION

2018 ◽  
Vol 12 (1) ◽  
pp. 11-20
Author(s):  
Laura-Dumitrana Rath Boșca ◽  
Bogdan Bodea
Keyword(s):  
Common Law ◽  
Judicial System ◽  
Social Solidarity ◽  
Historical Process ◽  
The Common ◽  
The Creation ◽  
English Law ◽  
The Law

Common Law represents the second biggest contemporary judicial system. Immanent to a historical process which led to the creation of a community, common law represents a form of social solidarity. It is not the result of any social consent to obey a law as much as it is the participation of the society, through its exceptions, to the process of elaborating the law by which it functions. So, society itself is through a sort of syncretism the common law.One the elementary concepts of common law is the doctrine of precedent which functions in parallel with organic laws in order to enhance both the results of judicial cases and the efficiency of the cases. In the English law, the testament is a representation of the wishes of a defunct person and the declaration of that persons wishes in relation to the belongings he wished to pass on after his death.

scholarly journals The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion

2021 ◽  
Vol 24 ◽  
pp. 1-25
Author(s):  
Friedrich Hamadziripi ◽  
Patrick C Osode
Keyword(s):  
Common Law ◽  
Judicial Interpretation ◽  
Commercial Law ◽  
The United Kingdom ◽  
Policy Objectives ◽  
The Common ◽  
The Uk ◽  
Current Derivative ◽  
Law Commission

The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the UK Companies Act, 2006. The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime’s achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants.

Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

2008 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Marilyn Warren
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Power ◽  
Executive Power ◽  
Judicial Activism ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Common

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

Biotechnology and Patent Infringement in the USA

1999 ◽  
Vol 13 (3) ◽  
pp. 203-214 ◽  
Author(s):  
David L. Parker ◽  
Nicole Stafford
Keyword(s):  
Common Law ◽  
Judicial Interpretation ◽  
Biotechnology Research ◽  
Patented Invention ◽  
The Usa ◽  
Reward Process ◽  
The Common ◽  
The Right ◽  
Patented Inventions ◽  
Apparent Conflict

Patent systems attempt to stimulate innovation through a reward process that provides the right to exclude others from making, using, selling, or offering to sell the patented invention for a defined period of time. A critical dilemma is presented by the need to ensure at the same time that researchers have the opportunity to improve on what previous research has achieved. Patented inventions which have a significant – if not sole – usefulness in the pursuance of further research are at the centre of this dilemma. In this paper, the authors discuss this apparent conflict in the context of US biotechnology research and patent legislation. They briefly review the origins of the common law research exemption doctrine in the USA and discuss the research exemption of 35 USC Section 271(e)(1) and its judicial interpretation. They then consider a variety of proposals from commentators, and draw up their own recommendations for an approach which carefully balances the need to promote innovation through the granting of valid patents with the need to preserve research access to basic inventions which constitute valuable starting points for the furtherance of research or tools which improve researchers' ability to innovate.

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