Unity in the Common Law?: Critical Notice:The Unity of the Common Law: Studies in Hegelian Jurisprudenceby Alan Brudner

1996 ◽  
Vol 9 (2) ◽  
pp. 411-423
Author(s):  
Richard Dien Winfield
Keyword(s):  
Reflective Equilibrium ◽  
Common Law ◽  
Theory And Practice ◽  
Actual Practice ◽  
Ethical Thought ◽  
Legal Thought ◽  
Penal Law ◽  
The Common ◽  
The Right ◽  
The Given

A specter of disunity haunts the common law, threatening to throw property, contract, tort, and penal law into a crisis, where competing paradigms stand intransigently opposed, undermining any claims of coherence and giving sober proof that legality is a battleground of equally unjustifiable ideologies where only force wins out at the end. The impending crisis pits advocates of liberalism, affirming the primacy of the right over the good, against communitarians, upholding the priority of commonly shared ends embodied in an historically given community. Yet although the conflict parallels what many take to be the exhaustive options of ethical thought, the difficulty extends beyond theoretical dispute into the actual practice of common law, where at every turn, tendencies promoting welfare clash with tendencies upholding the formal right of ownership. In face of such division in both theory and practice, the dangers of idealism seem hardly surmountable by fidelity to law or by reflective equilibrium, for if disunity pervades legal thought and convention, neither appeal to the given can locate a coherent kernel in the conflicted shell.

scholarly journals Unauthorized medical intervention and informed consent in the common law of Canada prior to the Supreme Court’s decision of Reibl v. Hughes (1899–1980)

2020 ◽  
pp. 260-282
Author(s):  
Anatoliy Lytvynenko
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Common Law ◽  
Case Law ◽  
Medical Intervention ◽  
Invasive Treatment ◽  
First Case ◽  
The Common ◽  
The Right ◽  
The Given

The given article deals with the Canadian legacy of civil actions on negligence and technical assault or battery involving an unauthorizedmedical interference to plaintiff. In modern doctrine and case-law, the given concept is named “informed consent”, upon whichthe patient is not a mere subject of medical treatment, but has a substantial set of patient rights, involving the informational ones, whichincludes his right to be informed on further invasive treatment and thus to be able to assent or decline it. The doctrine of informed consent,arising from actions on unauthorized medical treatment in both common law and civil law jurisdictions, has a centuryfold historyin the jurisprudence. In the common-law world, it was bred in the end of the 19th century primarily in the jurisprudence of Americancourts, but still has its distinct peculiarities in the common law of Canada throughout the twentieth century. The span on the researchedjurisprudence embraces the time period of 1899 (judgment of Parnell, which was the first case to deal with the subject) to 1980 (caseof Reibl v. Hughes), where the Canadian Supreme Court has firmly recognized the principle of informed consent in the acting commonlaw. In the 1990s, the principles of informed consent had been codified. The author has investigated on the evolvement of the conceptof patient’s right to autonomy in the state from the very beginning to the judgment of Reibl v. Hughes in 1980, and has researched theroots of the “right to autonomy” as an extension of the right to privacy, which has penumbrally existed in Canadian jurisprudence forover a century, despite having been recognized as such relatively recently, despite an existence of various early case-law legacy. Apartfrom the abovesaid, the author aimed to define the authorities used by Canadian courts in the earlier cases dealing with unconsentedsurgery, which involves judgments from other jurisdictions as well as professional legal and medical textbooks.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

Third Party Beneficiary: A Comparative Analysis

1976 ◽  
Vol 11 (3) ◽  
pp. 315-338 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Critical Examination ◽  
Legal Research ◽  
General Part ◽  
The Common ◽  
Comparative Survey ◽  
The Right

Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.

Part III The right To Terminate, 5 Breach of Condition

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Common Law ◽  
The Other ◽  
The Common ◽  
The Right

This chapter focuses on breach of condition. The first situation in which termination will be available is where the other party has broken a ‘condition’. A condition is a stipulation in a contract, be it a contract of sale or some other contract, the breach of which gives rise to the right to ‘treat the contract as repudiated’. When is a term a ‘condition’? A term can be made a condition either by express stipulation or by implication. The chapter then distinguishes condition from various other concepts with which it may appear to have similarities, but which work in different ways. It also looks at time stipulations and the divergent approaches of the common law and equity to time stipulations.

Legal aspects of fitness for work

2013 ◽  
pp. 21-41
Author(s):  
Gillian S. Howard
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Legal Aspects ◽  
Employment Law ◽  
England And Wales ◽  
Law System ◽  
Lower Courts ◽  
The Common ◽  
The Uk ◽  
The Right

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

Response: The Politeness of History

2015 ◽  
Vol 40 (01) ◽  
pp. 264-269
Author(s):  
Kunal M. Parker
Keyword(s):  
Common Law ◽  
Historical Knowledge ◽  
Knowledge Practices ◽  
Legal Thought ◽  
The Common ◽  
Democracy In America

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.

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