Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

scholarly journals VAGUENESS, AUTONOMY, AND R V BROWN

2015 ◽  
Vol 1 ◽  
Author(s):  
David Arnold
Keyword(s):  
New Zealand ◽  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
The Third ◽  
The Common ◽  
The Law

This article comments on the article in this volume entitled ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado-masochism and R v Brown’ by Jordan Moulds. It argues that the defence of consent should not be circumscribed to the extent that it was in Brown for three reasons: the first is based on maintaining the coherence of the law; the second arises from the importance of valuing the liberty of individuals in cases where a statute is vague; and the third is found in the value of autonomy. This comment argues in Part I that the criminal law and tort law should set the same threshold at which consent will no longer afford a defence. Part II draws on the theories of Raz, Fuller and Marmor argues that the liberty of individuals should not be so easily sacrificed where the statute allegedly governing the impugned behaviour is vague; and Part III concludes that the common law position on consent in New Zealand serves as an example of an acceptable balance between the autonomy of the victim and the role that the criminal law has to play in reducing threats to peace and order. 

scholarly journals A medieval book and early-modern law: Bracton 's authority and application in the common law c. 1550–1640

2011 ◽  
Vol 79 (1) ◽  
pp. 47-80 ◽  
Author(s):  
Ian Williams
Keyword(s):  
Early Modern ◽  
Thirteenth Century ◽  
Criminal Law ◽  
Common Law ◽  
Contract Law ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Evidence Of Impact

AbstractThis article considers the place of the thirteenth-century book known as Bracton in the earlymodern common law. e article examines both the uses made of Bracton and the evidence to be found in the surviving copies of the first printed edition. It addresses the impediments to the use of Bracton, the printing of the first edition, the text's readership and place in the early-modern common-law canon and material in Bracton which seem to have been of particular interest.Bracton was a recognised source for criminal law and there is some evidence of impact on the law of evidence, servitudes and a little for contract law. An examination of the early-modern law of treason shows that Bracton had an important role in changing the concept of treason from a crime against the monarch to something like the classical crimen laesae maiestatis.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

scholarly journals A Comparative Study of Absolute Liability Offense in Iran and the UK

2016 ◽  
Vol 12 (3) ◽  
pp. 135
Author(s):  
Seyed Mohammad Mousavi ◽  
Arash Babaei ◽  
Shamsollah Khatami ◽  
Yousef Jafarzadi
Keyword(s):  
Comparative Study ◽  
Criminal Law ◽  
Common Law ◽  
Objective Measure ◽  
Legal Texts ◽  
The Face ◽  
The Common ◽  
The Law ◽  
The Uk ◽  
First Time

<p>One characteristic of the force of law in the country, the integrity of the rules in all areas of all aspects of creation into account the distinction between crime and the crime and failed or incomplete in acts of crime and crime as the withdrawal. In this respect the rules on penalties culpability in the crime has been proposed that the content of the crime with absolute responsibility of these categories has manifested. Under the Articles 144 and 145 of the Latest version Islamic criminal law (2013), Create unintentional offenses, subject to verification of the fault committed. In crimes ranging from quasi-intentional unintentional deviation as retaliation book rules apply. Legislator to commit a fault, the reason for the error is considered criminal, which has always been considered an objective measure and a ruler (in Article 145), while the common law under subsection (1) "criminal law to crimes" adopted 1981 crime start as the offense is punishable total. This study showed that certain similarities between the laws. In this context, the two internal laws and the common law can be found, in which the underlying offense of absolute liability is not fixed in the courts. Always treat judges and lawyers in the face of legal texts are not consistent because of the lack of transparency and clarity of the rules. In particular, in the common law, when a crime for the first time in cour t, and a warrant has been issued about it in terms of predicting the law and with regard to the interpretation of judges, procedural difference is more tangible.</p>

FIXING THE BOUNDARIES OF THE CONCEPT OF CRIME: THE CHALLENGE FOR HUMAN RIGHTS

2005 ◽  
Vol 54 (3) ◽  
pp. 719-734 ◽  
Author(s):  
Audrey Guinchard
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Basic Feature ◽  
Administrative Law ◽  
Criminal Sanction ◽  
Standard Of Proof ◽  
Criminal Sanctions ◽  
Civil Proceedings ◽  
The Common ◽  
Substantive Law

In England and Wales, as elsewhere, criminal law stands in sharp contrast to other systems of social control. Criminal offences and their related penalties are clearly distinguishable from civil wrongs and their associated (civil) sanctions. And because the term ‘civil law’ refers not only to the domain of torts, but also encompasses administrative law, criminal penalties are, in addition, distinguished from the administrative or regulatory sanctions. This ‘distinction between criminal and civil justice has been such a basic feature of the common law’1that it shapes not only substantive law but also the organization of the courts into civil, criminal and sometimes administrative chambers or divisions. More importantly, the distinction between civil and criminal sanctions will lead to the application of different procedural rules: civil proceedings, used for the imposition of civil sanctions, are less stringent that their criminal counterpart applied when the offender faces a criminal sanction. This more gentle approach can be detected in both the burden and standard of proof.

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