What Does History Matter to Legal Epistemology?

2011 ◽  
Vol 5 (3) ◽  
pp. 383-405 ◽  
Author(s):  
Maksymilian Del Mar
Keyword(s):  
Common Law ◽  
General View ◽  
Dynamic Content ◽  
The Past ◽  
History Matter ◽  
The Common ◽  
Legal Epistemology

Abstract This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions (a ‘timeless what’ that determines its own relevance), but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as ‘thick resources with dynamic content’. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law’s past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present.

scholarly journals Is Separation still an Important Component of Marital Dissolution?

2008 ◽  
Vol 35 (1) ◽  
pp. 187
Author(s):  
Wayne W. McVey, Jr.
Keyword(s):  
Common Law ◽  
Marital Dissolution ◽  
Marital Separation ◽  
The Past ◽  
Family Form ◽  
New Family ◽  
Time Period ◽  
The Common ◽  
Marital Breakdown ◽  
Statistics Canada

This research examines the diversification and changes in the Canadian family form over the past 25 years. While the husband-wife family has declined over this time period, it still remains the dominant family form. Statistics Canada census statistics allows for the examination of new family forms since 1981, as the common-law partnership and the now married have been distinguished within the husband-wife family category. With the introduction of the 1968 and 1985 Divorce Acts, separation became a major ground for divorce in Canada. Marital breakdown should be measured by the incidence of both divorce and separation. The popularity of cohabitation further clouds the measuring of total partnership breakdown since separation of cohabiting partners is not recorded. This research focuses on the change in marital separation and the increase in cohabitation since 1981. Marital separation has declined in its contribution to total marital dissolution since 1985.

The Chartists and the Constitution: Revisiting British Popular Constitutionalism

2017 ◽  
Vol 56 (1) ◽  
pp. 70-90 ◽  
Author(s):  
Josh Gibson
Keyword(s):  
Nineteenth Century ◽  
Natural Law ◽  
Political Development ◽  
Common Law ◽  
The Past ◽  
The Common ◽  
Fundamental Law ◽  
English Law ◽  
Scholarly Attention ◽  
Popular Constitutionalism

AbstractDespite having a powerful influence on the historiography of radicalism and nineteenth-century politics for the past several decades, the language of the constitution has not recently received scholarly attention. In Chartist and radical historiography, the constitution is usually treated as a narrative of national political development. This article extends the horizons of Chartist constitutionalism by exploring its similarities with American constitutionalism. By doing so, it also opens up questions regarding the ideas of the movement. Like the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority. This perception was informed by a belief that the constitution rested on the authority of the fixed principles of fundamental law, which they argued placed limits beyond which Parliament had no power to reach. As a result, the Chartists imagined that the British constitution functioned like a written constitution. To support this claim, they drew on a sophisticated interpretation of English law that argued that the common law was closely related to natural law.

scholarly journals Defining and Describing What We Do: Doctrinal Legal Research

2012 ◽  
Vol 17 (1) ◽  
pp. 83 ◽  
Author(s):  
Terry Hutchinson ◽  
Nigel Duncan
Keyword(s):  
Research Methodology ◽  
Research Method ◽  
Common Law ◽  
Legal Research ◽  
Interdisciplinary Work ◽  
Applied Logic ◽  
The Core ◽  
The Past ◽  
Grant Applications ◽  
The Common

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

Protecting Business Reputation in Australia — Section 52 of the Trade Practices Act and Passing Off

1983 ◽  
Vol 13 (3) ◽  
pp. 253-268
Author(s):  
Anna Sharpe
Keyword(s):  
Common Law ◽  
Federal Court ◽  
Passing Off ◽  
The Past ◽  
The Common

The common law relating to the tort of passing off is the traditional means by which conduct threatening business reputation may be halted. During the past five years, the Federal Court of Australia has been called upon on many occasions to apply s 52 Trade Practices Act 1974 (Cth) to prevent such conduct. As yet, there has been no clear judicial statement as to the interrelationship and overlap between the two causes of action. This Article discusses the scope of the two causes of action in the context of an allegation of actual or threatened erosion of goodwill. The types of cases in which such allegation is usually made is then examined and suggestions given as to which cause of action should be relied on.

CRITICAL NOTICE TOO MUCH INVESTED TO QUIT

2004 ◽  
Vol 20 (1) ◽  
pp. 185-208 ◽  
Author(s):  
Arthur Ripstein
Keyword(s):  
Common Law ◽  
Law Students ◽  
First Year ◽  
Economic Analysis Of Law ◽  
Remarkable Change ◽  
Liability Rules ◽  
The Past ◽  
The Common ◽  
The Law ◽  
Economic Analyses

The economic analysis of law has gone through a remarkable change in the past decade and a half. The founding articles of the discipline – such classic pieces as Ronald Coase's “The problem of social cost” (1960), Richard Posner's “A theory of negligence” (1972) and Guido Calabresi and Douglas Malamed's “Property rules, liability rules, and inalienability: One view of the cathedral” (1972) – offered economic analyses of familiar aspects of the common law, seeking to explain, in particular, fundamental features of the law of tort in terms of such economic ideas as transaction costs (Coase), Kaldor-Hicks efficiency (Posner), or minimizing the sum of the accident costs and avoidance costs (Calabresi and Malamed). In each case, they argued that the law of torts should be understood as a set of liability rules selected for their incentive effects, rather than as a set of substantive rights and remedies for their violation. These authors claimed to be able to explain most of the features of tort law and, where features were found that did not fit with their preferred explanations, recommended modification. Although they disagreed on important questions, each of the pieces seems to work a manageable structure into what strikes first-year law students as an otherwise random morass of common-law judgments. Generations of legal academics were introduced to these works, and drawn into their way of looking at things. As a student studying first-year torts with Calabresi at Yale, I had the sense that I was in the presence of greatness.

Duress and the Criminal Law: Another About Turn by the House of Lords

1988 ◽  
Vol 47 (1) ◽  
pp. 61-76 ◽  
Author(s):  
H. P. Milgate
Keyword(s):  
Northern Ireland ◽  
Criminal Law ◽  
Common Law ◽  
General Rule ◽  
The Past ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Second Degree

In the field of criminal law we should be used to the House of Lords changing its mind. In the course of the past three years the House has fundamentally altered its view on the meaning of intention, on the relationship between statutory and common law conspiracy and on the law of impossible attempts. Now we have another about turn. In R. v. Howe and Bannister the House of Lords has unanimously decided that duress can never be a defence to murder. Yet elsewhere in the criminal law (with the exception of some forms of treason) duress operates as a complete defence, leading to acquittal if raised successfully. In making murder an exception to this general rule the House, using its power under the Practice Statement of 1966, has departed from its previous decision in D.P.P. for Northern Ireland v. Lynch which allowed the defence of duress to be raised by principals in the second degree to murder. The Lynch decision, which had stood as part of the common law for some twelve years, is now consigned to the legal scrapheap.

scholarly journals Sovereignty this Century - Maori and the Common Law Constitution

2000 ◽  
Vol 31 (1) ◽  
pp. 187 ◽  
Author(s):  
P G McHugh
Keyword(s):  
Common Law ◽  
Public Law ◽  
Capital City ◽  
Past Century ◽  
Quarter Century ◽  
Constitutional Order ◽  
The Past ◽  
The Status ◽  
History Of ◽  
The Common

This paper is an attempt to give a panorama of constitutional life in New Zealand this century as viewed through a particularly important window, the status of the aboriginal Maori people of these islands. Questions of Maori rights and their position in the constitutional order have become burning issues in this final quarter century and represent an immense challenge for the next. This exploration is particularly appropriate as we celebrate a century of law teaching in this capital city at a University which has produced many if not most of this country's distinguished and influential public lawyers. In many respects, the history we are about to review is also a history of common law constitutionalism in this country as well to a lesser extent as similar Anglophonic jurisdictions. We are looking not just at how that part of the common law we call "public law" has dealt with a particular ethnic group. Through this aboriginal window we are looking at the changing logic and reach of public law through the past century and at the nature and character of the common law itself.

scholarly journals IN SEARCH OF PERFECTA: THE CONUNDRUM OF INCORRECTLY PRICED GOODS UNDER THE CONSUMER PROTECTION ACT 68 OF 2008

Obiter ◽  
2014 ◽  
Author(s):  
Neville Melville ◽  
Tanya Woker
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
The Past ◽  
Consumer Protection Act ◽  
Knowing That ◽  
Personal Interaction ◽  
The World ◽  
Legal Precedent ◽  
Flat Screen ◽  
The Common

In spite of the sea change over the past sixty-odd years in the way we shop, from a personal interaction with the local shopkeeper to a cashierless self-checkout, and the billions of transactions that take place daily in stores and supermarkets around the world, there is a dearth of legal precedent regarding the legal mechanics of these transactions. This is particularly so as far as determining the very important practical issue of at what point the sale is perfecta (irrevocably concluded) is concerned. For example, a consumer receives a catalogue from a well-known store in which a flat screen television is advertized on special for R599. Well knowing that such television sets are normally sold for over R6000 the consumer rushes off to purchase a set only to be faced with a large sign which reads as follows: “Unfortunately the advertised price was incorrect, the correct price is R5 999. We apologise for the inconvenience.”A slightly different scenario is where the consumer is only informed of this mistake after she has removed the television set from the shelf and taken it to the cashier who proceeds to ring up the price of R5 999. When the consumer points out that this is not the advertised price the cashier informs her that a mistake was made and that in fact R5 999 is the correct price. Is there a point in time when the supplier, despite a mistake, may be bound by the advertised price? (The purpose of this article is to consider the point in time when the contract is regarded as perfecta. The scenario set out above may also constitute bait-advertising. This is an issue which we intend to consider in our next article.) It is against this backdrop that we attempt to provide some guidance to those who are obliged to comply with the provisions of the Consumer Protection Act, relating to displayed prices.In doing so, we shall consider the extent to which the Roman-Dutch-based common law has been influenced by English Law in this area of consumer protection. Reference will be made to the principles of the common law regarding the formation of a contract (particularly the point at which the contract comes into effect), quasi consent and mistake as well as relevant foreign precedent. We shall then deal with the changes brought about by the CPA.

DECISION IN CASE House of Lords (all judges agreed with the opinion of Lord Bridge.) Lord Bridge (1) The common law issue That the limitation clause was operative and could effectively limit liability. The wording of the condition was unambiguous in this regard. Limitation clauses do not have to adhere to the strict principles laid down for complete exclusion clauses (see Ailsa Craig (1983)), although they must be clearly expressed and must be strictly interpreted against the party relying on them (contra proferentem). Decision partly supported by the following precedents Photo Production Ltd (1980). Even in cases of fundamental breach, (core) limitation clauses are available to be relied upon by one party. Ailsa Craig (1983). There is a difference of approach appropriate between limitation and exclusion clauses. Limitation clauses do not have to be so strictly interpreted. (2) The statutory issue Even though the clause was enforceable at common law, after considering s 55(4), (5)(a) and (c), Lord Bridge decided that the common law provision was overridden by the statutory obligation in s 55(4) for such clauses to be fair and reasonable otherwise. The clause was therefore unenforceable. The grounds for deciding clause unfair and unreasonable were that: (a) in applying s 55(5)(a), it was clear that in the past appellants had sought to negotiate a settlement that was higher than the price and had not relied on the limitation clause; (b) supply of seed was due to the negligence of appellants sister company; (c) appellant could easily have insured against loss. Obiter dicta (a) The phrase ‘to the extent that’ discussed and said to mean ‘in so far as’ or ‘in the circumstances which’. Section 54(4). Although this is not relevant to this case it is possibly an important obiter dictum. (b) There may be some mileage in discussion concerning whether there can be partial reliance on limitation clauses again. Although this is not relevant to this case, possible important obiter dicta. (c) The phrase ‘in all the circumstances’ in s 55(5) means one should take account of circumstances at and after time of the breach.

2012 ◽  
pp. 116-116
Keyword(s):  
Common Law ◽  
The Past ◽  
House Of Lords ◽  
Complete Exclusion ◽  
The Common ◽  
Obiter Dictum ◽  
Photo Production
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