The Common Law

2021 ◽  
pp. 46-68
Author(s):  
Stuart Banner
Keyword(s):  
19Th Century ◽  
Natural Law ◽  
Common Law ◽  
Late 19Th Century ◽  
The Common ◽  
The Law

This chapter discusses 18th- and 19th-century lawyers’ understanding of common law, the law found in court opinions. Today lawyers think of the common law as consisting of the opinions themselves, and they think of judges as making the law when they write the opinions. Before the late 19th century, by contrast, lawyers believed that the common law had an existence independent of court opinions, and that the opinions were merely evidence of the law rather than the law itself. Common law was understood in large part as natural law applied to specific situations. It was considered to be something found, not made, by judges.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

The Separation of Law and Religion

2021 ◽  
pp. 96-118
Author(s):  
Stuart Banner
Keyword(s):  
19Th Century ◽  
Natural Law ◽  
Early Republic ◽  
Common Law ◽  
Important Change ◽  
The Public ◽  
The Common ◽  
The Public Sphere ◽  
The 19Th Century ◽  
The Relationship

This chapter discusses an important change in lawyers’ understanding of the relationship between the spheres of law and religion during the 19th century. In the early Republic these spheres substantially overlapped. Natural law was understood to have been created by God. Christianity was considered to be part of the common law. Americans may not have become any less religious in the 19th century, but they increasingly came to think of religion as part of one’s private, personal life, separate from the public sphere of law. As law and religion separated, the notion that natural law should play a role in the legal system came to seem more and more anomalous.

Natural Law and Common Law

2001 ◽  
Vol 5 (1) ◽  
pp. 4-20 ◽  
Author(s):  
D J Ibbetson
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Company Law ◽  
Practical Significance ◽  
Law Of Nature ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Reports ◽  
Lost Opportunity

If you scan through the law reports ofthe last century or so, you will come across a sprinkling of references to Natural Law, commonly in conjunction with some such phrase as “manifest nonsense”.1 Introductory books dealing with the sources of law hardly place it in the forefront of their treatment, to say the least; and anyone writing a practitioners' manual on some practically useful area of law who began with a chapter on Natural Law would be thought to have taken leave of his senses. Go back two or three hundred years or so and the picture looks very different. References to the law of nature abound in the reports of the seventeenth and eighteenth centuries; institutional writers dealing with the Common Law will regularly list Natural Law as one of its principal sources, and when Stewart Kyd wrote the first English book on what we would now call company law2 the obvious starting pointfor his first chapter was the work of the Natural Lawyers of the previous century. England, like everywhere else in Europe, had been caught up in a fervour of Natural Law thinking. Legal historians, of course, are well aware of this, but commonly portray it in their books as part of the background against which the Common Law was worked out, rather than as an integral part ofthe story of English law's development.3 This downplaying of the practical significance of Natural Law represents something of a lost opportunity, not merely because it can give a frame of reference within which some sense can be made ofthe reorientation of English law in the eighteenth century, but also because it provides an important point ofcontact between the all-too-insular history ofEnglish law and the apparently more homogeneous legal history of the rest of Europe.

The Decline of Natural Law

2021 ◽  
Author(s):  
Stuart Banner
Keyword(s):  
19Th Century ◽  
Legal System ◽  
Natural Law ◽  
Rapid Growth ◽  
Legal Issues ◽  
Late 19Th Century ◽  
Long Term Trends ◽  
The Law ◽  
American Legal System

Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments, and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer’s toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead. The Decline of Natural Law explores the causes and consequences of this change. It discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. It examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century’s most contested legal issues. It describes the profession’s rejection of natural law in the late 19th and early 20th centuries. And it explores the ways in which the legal system responded to the absence of natural law.

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.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

Sign in / Sign up

Export Citation Format

Share Document