Philosophical Foundations of the Law of Equity

2020 ◽  
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Social Goals ◽  
Private Law ◽  
The Rule Of Law ◽  
Philosophical Foundations ◽  
Order Constraint ◽  
The Common ◽  
Law And Morality ◽  
The Law

A late-comer to the field of private law theory, the inquiry into the foundations of the law of Equity raises some fundamental questions about the relationships between law and morality, the nature of rights, the extent to which we are willing to compromise on the Rule of Law ideal in order to achieve various social goals. In this volume, leading scholars in the field address these and the questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of ‘equity’? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity—and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around ‘fusion’.

scholarly journals How has China formed its conception of the rule of law? A contextual analysis of legal instrumentalism in ROC and PRC law-making

2017 ◽  
Vol 13 (3) ◽  
pp. 277-294 ◽  
Author(s):  
Qianlan Wu
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Modern Society ◽  
Contextual Analysis ◽  
European Origin ◽  
The Rule Of Law ◽  
The World ◽  
The Common ◽  
The Law ◽  
Law Making

The rule of law as a globally recognised concept is multi-faceted (Chesterman, 2008). In the common-law tradition, it is conceived through a formal and substantive framework. In essence, it centres on the supremacy of the law over the arbitrary exercise of power and the formal legality of the law (Tamanaha, 2004, p. 115; Cotterrell, 1992, p. 157). The rule-of-law concept has been criticised as being of unique European origin, where plural social organisation and universal natural law constitute its two preconditions (Unger, 1977, pp. 80–110). It has, however, been advocated around the world as one essential principle leading to modernity, where the legitimacy of the law based on the formal and substantive rule of law serves as a strong symbol for a modern society (Deflem, 1996, p. 5).

6. The royal prerogative and constitutional conventions

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
The Rule Of Law ◽  
Head Of State ◽  
Constitutional Conventions ◽  
The Common ◽  
The Law ◽  
The Government ◽  
The Uk

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government are part of the royal prerogative, as recognised by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.

6. The royal prerogative and constitutional conventions

Public Law ◽  
2020 ◽  
pp. 203-258
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
The Rule Of Law ◽  
Head Of State ◽  
Constitutional Conventions ◽  
The Common ◽  
The Law ◽  
The Government ◽  
The Uk

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government stem from the royal prerogative, as recognized by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.

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.

scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice

1936 ◽  
Vol 30 (3) ◽  
pp. 414-438 ◽  
Author(s):  
H. Arthur Steiner
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Current Practice ◽  
Common Law ◽  
International Justice ◽  
Large Measure ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Anglo American

Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.

The Constitution of Law: Legality in a Time of Emergency by David Dyzenhaus, (Cambridge: Cambridge University Press, 2006). 250pp. Page numbers in text are to this book.

2008 ◽  
Vol 21 (2) ◽  
pp. 477-483
Author(s):  
Jamie Cameron
Keyword(s):  
National Security ◽  
Rule Of Law ◽  
Common Law ◽  
Middle Ground ◽  
Cambridge University ◽  
The Rule Of Law ◽  
Legislative Action ◽  
The Common ◽  
Constitutive Properties ◽  
Principle Of Legality

What the rule of law means and how it constrains the exercise of state power raise issues which have been debated-without resolution-over the ages. Times of emergency bring fresh energy to the discussion, and David Dyzenhaus is one of many who have entered the fray to debate the balance between liberty and national security in the post 9/11 period. It has not been easy for those who place their trust in written constitutions to account for the way textual guarantees are diluted when the state is under threat. Rather than address that dilemma, Dyzenhaus sets his ideas apart by proposing a theory which maximizes the protection of rights in emergency circumstances, without straining the institutional capacities or legitimacy of the judiciary. This theory invokes the pedigree of the common law-and “common law constitutionalism”-and is grounded in the constitutive properties of the rule of law, or principle of legality. Dyzenhaus may not have answered the questions readers will want to ask, but he has opened up the middle ground between the competing supremacies yet more, by drawing common law constitutionalism and its rule-of-law pedigree into constitutional theories of review. More to the point, he has challenged the judiciary to draw on the moral resources of the law to make executive and legislative action as accountable as possible at all times, in emergencies as well as in normal times. Readers can and should engage, at many levels, with the complexity of his thought in this important book.

Equity’s Own Room

Equity ◽  
2018 ◽  
pp. 1-76
Author(s):  
Irit Samet
Keyword(s):  
Rule Of Law ◽  
Mode Of Action ◽  
Ad Hoc ◽  
Common Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Unique Mode ◽  
Ex Post

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion project, which advances the idea that the differences between Equity and Common Law ought to be ironed out so as to create one seamless cloth of private law; and the ‘conscionability scepticism’, which rejects the standard of conscience—the most familiar characteristic of Equity. The chapter analyses both views in terms of the Rule of Law (ROL) ideal and goes on to argue that Equity promotes a legal virtue that is neglected by Common Law’s fixation on the ROL ideal: the ‘Accountability Correspondence’. I then attempt to show how Equity reintroduces an essential equilibrium between Accountability Correspondence and the ROL, and the dangers of neglecting to promote such equilibrium. The chapter then explains why the characteristics most associated with Equity, namely, the use of flexible, ad hoc, ex post morally freighted principles, are necessary for the attainment of this goal. Next, I contend that the standard of conscionability—the epitome of Equity’s unique mode of action, is not at all as hostile to the ROL ideal as many conscionability sceptics claim.

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