Beyond Common Law Evidence

2019 ◽  
pp. 785-820
Author(s):  
John Jackson ◽  
Paul Roberts
Keyword(s):  
Forensic Science ◽  
Common Law ◽  
Legal Proceedings ◽  
Disciplinary Boundaries ◽  
Procedural Law ◽  
The Common ◽  
Evidence Law ◽  
Law Of Evidence ◽  
The Impact ◽  
New Evidence

This chapter offers a critique of the “common law model” of the Law of Evidence and calls for a new organizing principle that “reimagines” evidence law as forensic science, particularly in the context of criminal adjudication. It first provides an overview of the orthodox common law model of Evidence Law before deconstructing it, arguing that it adopts a very narrow doctrinal focus, thus undermining the dynamic processes through which evidence is collected, organized, presented, tested, and evaluated in legal proceedings. It also suggests that the model is difficult to defend in terms of robust disciplinary boundaries differentiating that which is specifically evidentiary from broader aspects of substantive and procedural law. Finally, it considers the so-called “New Evidence Scholarship” on evidence law, the impact of the new cosmopolitanism on common law evidence, and the rationale for reconceptualizing evidence law as part of an interdisciplinary “forensic science” that goes “beyond common law.”

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Adrian Zuckerman’s New Evidence Scholarship

2020 ◽  
pp. 59-88
Author(s):  
Paul Roberts
Keyword(s):  
Practical Wisdom ◽  
Common Law ◽  
Normative Values ◽  
Procedural Law ◽  
Institutional Transitions ◽  
Primary Focus ◽  
Evidence And Proof ◽  
Law Of Evidence ◽  
New Evidence ◽  
Normative Foundations

Civil procedure has been the primary focus of Adrian Zuckerman’s evidentiary scholarship in recent decades. In contributing to a celebration of his profound and lasting influence on the procedural law and scholarship of England and Wales, this essay concentrates on Zuckerman’s earlier work primarily addressing criminal evidence and procedure. It identifies and elaborates on three particularly significant conceptual innovations in Zuckerman’s evidentiary writings concerning the (1) disciplinary domain; (2) institutional context(s); and (3) normative sources of evidence law. These conceptual advances are expounded in terms of three correlative dynamic disciplinary and institutional transitions: (1) from ‘Law of Evidence’ to ‘Evidence and Proof’; (2) from transubstantivity to procedural differentiation; and (3) from evidentiary rules to principled discretion. In his ground-breaking work on the principles of criminal evidence, I argue, Zuckerman challenged us to rethink the disciplinary contours, normative foundations and jurisprudential methodologies of common law evidence. Against the prevailing common law orthodoxy of a Thayerite model of generic exclusionary rules, Zuckerman insisted that criminal evidence should be reconceptualized as the practical wisdom of principled discretion rooted in the normative values and objectives of penal justice.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

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.

scholarly journals Apontamentos sobre a Efetividade da Tutela Jurisdicional em Matéria Previdenciária

2014 ◽  
Vol 9 (2) ◽  
Author(s):  
Aline Machado Weber
Keyword(s):  
Social Security ◽  
Public Administration ◽  
Legal Proceedings ◽  
Procedural Law ◽  
The Social ◽  
De Se ◽  
Critical Issues ◽  
Judicial Proceedings ◽  
The Common ◽  
Social Security Benefits

APONTAMENTOS SOBRE A EFETIVIDADE DA TUTELA JURISDICIONAL EM MATÉRIA PREVIDENCIÁRIA   NOTES ON THE EFFECTIVENESS OF JURISDICTIONAL PROTECTION IN SOCIAL SECURITY MATTERS  RESUMO: Ações em que se postula a concessão de benefícios previdenciários consistem em substancial parcela das demandas judiciais em curso no país. A despeito da sua importância em termos quantitativos, porém, ainda é tímido o interesse da doutrina no direito previdenciário pelo seu viés processual. O presente trabalho tem por objetivo analisar a tutela jurisdicional em matéria previdenciária enquanto instrumento hábil a equacionar os relevantes valores constitucionais em discussão. Vale-se, para tanto, da noção de lide previdenciária, na qual residiria o traço distintivo do processo judicial previdenciário. Em um primeiro momento, objetiva-se delinear a demanda judicial previdenciária, discorrendo sobre seu caráter individual e multifatorial, com destaque para a influência da Administração Pública e do Poder Judiciário no incremento da litigiosidade nessa seara. Em um segundo momento, analisa-se o processo judicial previdenciário, destacando os pontos críticos que impedem seja ele um processo de resultados, a saber, o distanciamento entre as esferas administrativa e judicial, a inadequação do procedimento comum, o excesso de instrução probatória e a postura pouco colaborativa das partes. Pretende-se, enfim, perquirir sobre a conveniência de se falar em um direito processual previdenciário e sobre as possibilidades que se abrem, a partir daí, para que esse processo judicial atinja seus escopos. PALAVRAS-CHAVE: Direito Previdenciário; Benefícios Previdenciários; Processo Judicial Previdenciário; Instrumentalidade; Eficiência. ABSTRACT: Lawsuits in which the concession of social security benefits is pursued comprise a substantial portion of lawsuits ongoing in the country. Despite its importance in quantitative terms, however, doctrine has still little interest in social security law in its procedural aspect. The present work has the purpose to analyze the jurisdictional protection in social security benefits matters as an apt instrument to equate the relevant constitutional values in discussion. It assumes, therefore, the concept of social security case, in which resides the distinctive feature of the welfare judicial proceedings. At first, the objective is to delineate the social security litigation, discussing its individual and multifactorial character, emphasizing the influence of public administration and the judiciary in the increase of litigation in this area. In a second moment, we analyze the social security judicial proceedings, highlighting the critical issues that prevent it to be a process of results, namely the distance between administrative and judicial realms, the inadequacy of the common procedures, excess of discovery phases, and little collaborative parties. We intend, ultimately, to assert the convenience of talking about a specific social security procedural law and the possibilities that are open, thenceforth, in order that these judicial proceedings reach its purposes. KEYWORDS: Social Security Law; Social Security Benefits; Social Security Legal Proceedings; Instrumentality; Efficiency.

13. Misrepresentation

2021 ◽  
pp. 414-470
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
The Impact

This chapter explains the law relating to the requirements and remedies for misrepresentation. The rules that the chapter covers developed originally in the context of all types of contracts. However, more recent legislation has introduced some specific protection for consumers. Consequently, the common law rules and older legislation that the chapter covers are now more applicable to non-consumer contracts, i.e. contracts between businesses and those between private parties. The chapter starts by addressing the kind of false statements that can result in a remedy. It then addresses the common law and legislative remedies that could be available to the innocent party. Finally, the chapter turns to the impact of the more recent consumer legislation before finally examining the extent to which an exemption clause could cover liability for misrepresentation.

20. Human Rights IV: The Impact of the Human Rights Act 1998

2021 ◽  
pp. 528-578
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some of the leading cases in which the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act has triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

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