A new chapter in the law of sexual harassment in Malaysia: The emergence of the torts of harassment and sexual harassment

2019 ◽  
Vol 48 (4) ◽  
pp. 191-207
Author(s):  
Abdul Majid ◽  
Sri Yogamalar ◽  
Audrey Kim Lan Siah ◽  
Jane L Y Terpstra-Tong ◽  
Luc Borrowman
Keyword(s):  
Sexual Harassment ◽  
Common Law ◽  
Federal Court ◽  
The World ◽  
The Common ◽  
Per Se ◽  
The Law ◽  
First Time

In a landmark case in 2016, Malaysia’s apex court, the Federal Court, explicitly recognised for the first time, the common law tort of sexual harassment. Actually, the Federal Court did more than that; its recognition of the common law tort of sexual harassment is built on its recognising the common law tort of harassment. The recognition of the tort of harassment has escaped notice because attention has been concentrated on the tort of sexual harassment. This article analyses the Federal Court’s exposition of the tort of sexual harassment to reveal that the exegesis itself acknowledges the existence of the tort of harassment per se. The tort of harassment that the Federal Court sent out into the world is largely a creature of its English common law ancestry.

Dangerous things and the Non-Natural User of Land

1929 ◽  
Vol 3 (3) ◽  
pp. 376-397
Author(s):  
W. T. S. Stallybrass
Keyword(s):  
Common Law ◽  
True Nature ◽  
Moral Qualities ◽  
The Common ◽  
Per Se ◽  
The Law

It is perhaps true that one of the most important moral qualities of a man, especially an undergraduate, is a knowledge of where to ‘draw the line’; it is certainly true that one of the most essential parts of a lawyer's equipment is the capacity for drawing distinctions correctly. The whole framework of the law is based upon distinctions, and the drawing of false distinctions is as disastrous as is the failure to draw those that are based upon sound reasoning. It is the object of this article to consider, very tentatively, two distinctions which have been introduced into the common law relating to injury done to others by the property of the defendant: in the first place, the distinction between those things which are dangerous per se and those things which are dangerous sub modo, and in the second place, the distinction between the natural and the non-natural user of land. I shall then endeavour to consider the relation of these two problems to each other. But there will be no attempt to state the nature or extent of the liability that arises; for example, I shall not consider the true nature of the rule in Rylands v. Fletcher or the extent of the duty owed by him who deals with dangerous chattels, though some light may incidentally be thrown upon such matters.

The Contractualisation of Labour Law

2018 ◽  
pp. 33-47
Author(s):  
John Gardner
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Work Relations ◽  
Contractual Relationship ◽  
The World ◽  
British Labour ◽  
The Common ◽  
The Law ◽  
Main Ideas

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

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>

New England

2019 ◽  
pp. 24-42
Author(s):  
William E. Nelson
Keyword(s):  
New England ◽  
Rhode Island ◽  
Common Law ◽  
Massachusetts Bay ◽  
Word Of God ◽  
New Haven ◽  
The World ◽  
Massachusetts Bay Colony ◽  
The Common ◽  
The Law

This chapter focuses mainly on developments in the law of the Massachusetts Bay Colony, which was founded as a Puritan utopia to display to rest of the world how a society should be governed. Although Massachusetts incorporated elements of the common law into its legal system, the dominant source of law was the word of God. But the divine word, which was enforced by the magistrates of the Court of Assistants, sometimes met resistance from local juries. A major issue throughout the 1630s and 1640s was whether the magistrates or local people would have final authority to determine the substance of the law; the issue was resolved in 1649 by providing for appeals in all cases of judge-jury disagreement to the General Court sitting as a unicameral body in which representatives of localities outnumbered the magistrates and thus had final authority. The chapter ends with a brief look at legal developments in Connecticut, New Haven, Plymouth, and Rhode Island.

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).

scholarly journals PENGUATAN KEDUDUKAN PRANATA HAK SERVITUT DAN HUKUM BERTETANGGA DALAM YURISPRUDENSI

2016 ◽  
Vol 3 (1) ◽  
Author(s):  
Rizal Sofyan Gueci
Keyword(s):  
Common Law ◽  
Civil Code ◽  
Customary Law ◽  
Land Consolidation ◽  
The World ◽  
The Common ◽  
The Law ◽  
Agrarian Law ◽  
Almost All ◽  
The Village

The Constitution has laid the foundation of checks and balances amongst the main state organs namely the executive, the legislative and the judicial power. This order as a guideline in the state and society, till the Village  level and within groups in the village such as the Neighborhood and citizen groups. Servitut Rights and neighbors law answer challenges of development of human settlements sustainably and resilient.  Servitut rights as a property rights regulated in Neighbor law book II Indonsian Civil Code of 1848 or in adat law term called easement (hak melalui tanah orang lain) which known by adat community entity is not older than the easement is recognized by customary law in almost adat law community entity throughout the territory of Indonesia.  The servitut right is the easement of yard (erfdiensbaarheid) or burden to rest on the grounds that one for the benefit of the another yard such that the owner of the yard were crushed should let the owner of the yard oppressor to pass through, drain the water (clear) on it, take view out through the window etc. This devotion land does not end with the death or replacement of yard owners concerned (Article 674 of the Indon. Civil Code). There are still remnants of feudalism and colonialism in tribal society, reflecting the concrete cases in the community there is disturbance against the rights of servitut with vigilante, then the rule of law invoked repeatedly and generating permanent jurisprudence. Kedudukannya hak servitut tidak tergoyahkan dengan adanya UUPA 1960 yang mengatakan semua hak atas tanah mempunyai fungsi sosial dan hukum adat dijadikan dasar dari hukum agraria nasional. The position of Servitut rights is impregnable with the Basic Agrarian Law 1960 (BAL) that says all rights on land has social functions and customary law form the basis of the national agrarian law. In Article I point 6 of BAL No. 5 year 1960 proves Indonesia is in a row of civilized countries that accommodates this legal institution. Jurisprudence confirm customary law as a living law as well as the Civil Code 1848 according to Supreme Court Circuler of 1963 treat as unwritten customary law in order to prevent the legal vacuum and reaching the objectives of the law. Jurisprudence has been recognized as one of the legitimate source of law in the Republic of Indonesia.  Indonesian Judges have shown its class in the world of justice, who did not want to look different in servitut rights issues which is an universal phenomenon. Almost all civilized countries of the UN members have recognized the existence of this institute servitut rights, both in the Code book as well as in its jurisprudence. Servitut rights institution is rooted in the common law ius commune since Roman Empire, which can not be ignored, despite overall individualistic Roman law, but in particular there are elements of social function. Servitut (lat.) is accommodated into the book of the law in almost all countries in the world, through colonialize, import law, voluntary transplants in the law of one self. Boedi Harsono, as nationalist and socialist thinker and R. Supomo as father of Indonesian customary law and by youth in 1928 is regarded as a national law with the smooth call it "right through another person's land" which is also known by the common law. The permanent Jurisprudence remains threngthen unwritten norm servitut rights or land rights through anothers person’s land showed the class of Indonesian Judges comparabele with justices of developed nations in assessing this servitut rights. Implementation build without displacing has been regulated in Law No. 4 year 1992 art. 22-32 and Act No. 1 year 2011 on Housing and Settlement Region art. 106-113 law institute land consolidation, which is compatible with the institute servitut right and reconfirmed the servitut.  Implementation, if one developer alone could make the plot and make the land ready to build cosolidate up to 6,000 ha orderly development of land, so a province or a local government / city are challenged to be able to hold up to 6,000 ha of land consolidation to reduce the backlog and combating land speculators. For the assessment of achievement of the Governor / Regional Office of BPN how long had a special local street, public street or road of servitut rights through land consolidation and how many special streets that have been submitted become public streets.Keywords: Reinforcement, top notch institutions, rights servituut

I. Attainder and Forfeiture, 1453 To 1509

1961 ◽  
Vol 4 (2) ◽  
pp. 119-151 ◽  
Author(s):  
J. R. Lander
Keyword(s):  
Married Woman ◽  
Maternal Inheritance ◽  
Common Law ◽  
Richard Ii ◽  
The Family ◽  
The Common ◽  
The Law ◽  
Late Fifteenth ◽  
Definition Of ◽  
First Time

Attainder was the most solemn penalty known to the common law. Attainder for treason was followed not only by the most savage and brutal corporal penalties and the forfeiture of all possessions, but in addition the corruption of blood passing to all direct descendants, in other words, by the legal death of the family. Before proceeding to an examination of the effects of parliamentary acts of attainder in the late fifteenth and early sixteenth centuries it is necessary first of all to define the scope of forfeiture for treason as it affected landed property. Bracton's classic definition of forfeiture had involved for the traitor ‘the loss of all his goods and the perpetual disinheritance of his heirs, so that they may be admitted neither to the paternal nor to the maternal inheritance’. Feudal opinion had always been very much opposed to the stringency of this conception and the Edwardian statute De Donis Conditionalibus, confirmed implicitly by the treason statute of 1352, had protected entailed estates from the scope of forfeiture, thus leaving only the fee simple and the widow's dower within the scope of the law. The wife's own inheritance or any jointure which had been made for her, because they ante-dated her husband's treason, as distinct from her right to dower which did not, were not liable to ultimate forfeiture—though a married woman could claim them only when ‘her time came according to the common law’, that is after the death of her husband when she ceased to be ‘femme couvert’. This equitable principle was confirmed by a statute of the Merciless Parliament of 1388 which, however, included for the first time the rule that lands held to the use of a traitor were also included in the scope of forfeiture. Thus, by 1388, of the lands held by a traitor (as distinct from the wife's inheritance and jointure), only those held in fee tail fell outside the scope of the treason laws. This loophole was closed by Richard II in 1398 when Parliament declared forfeit entailed estates as well as lands held in fee simple and to the use of a traitor, thus reverting with one exception to Bracton's view of forfeiture.

scholarly journals Economics, Public Policy, and Law

1996 ◽  
Vol 26 (1) ◽  
pp. 1
Author(s):  
Susan Rose-Ackerman
Keyword(s):  
Public Policy ◽  
Public Administration ◽  
Law And Economics ◽  
Common Law ◽  
Collective Decision Making ◽  
The World ◽  
The Common ◽  
The Law ◽  
The Relationship

Some lawyers view the law as a self-contained body of wisdom independent of the contaminating influences of other branches of knowledge. Such lawyers resist efforts to combine law with economics. In doing so, the author argues that these lawyers miss an opportunity for gaining a deeper understanding of the way law works in the world. This article thus explores the relationship between economics as a methodology, public policy, and the law. The author first tackles the argument that the economist's concentration on efficiency is flawed because it is unconcerned with justice. The author then discusses the role of economics in light of collective decision-making found throughout society. Economics and the design of efficient regulatory schemes are also discussed, as well as in the comparative law context. It is argued that the intersection between the common law and economics must be widely accepted, even though it suffers from limitations in resolving difficult policy issues. Thus, the author concludes that economic analysis alone cannot be an all-purpose resolver of the problems of the modern capitalist welfare state. Nonetheless, economic frameworks remain useful for lawyerly thinking; law and economics must thus be joined by a broader range of subjects, including political science and public administration. 

scholarly journals Dressing the law

2018 ◽  
Vol 14 (4) ◽  
pp. 479-492
Author(s):  
Aoife Monks
Keyword(s):  
Common Law ◽  
Professional Culture ◽  
England And Wales ◽  
The Common ◽  
The Law ◽  
First Time ◽  
Point Of Departure

AbstractThe theatre shares many features with the law. One key commonality is the presence of dressers in both professions. In the law and the theatre, the dresser is a key intermediary in the transformation of bodies and the transmission of professional culture, while being relatively under-recognised in criticism and scholarship. The point of departure for this paper is that the dresser is a figure worthy of further scrutiny. As the Court and Ceremonial Manager at Ede and Ravenscroft, Christopher Allen is perhaps one of the common law's most important dressers. Allan is instrumental to the entry of the judiciary into their new roles by dressing them for the very first time in advance of their swearing-in ceremony. Established as a wig-making business in 1726 (later selling robes from 1871), Ede and Ravenscroft are the tailors and robe-makers of choice for the judiciary, not only in England and Wales, but in many common-law jurisdictions. This paper draws upon an interview with Allen about his work as the dresser of the judicial establishment of England and Wales in order to explore the role of dressing up in the production of images of the judiciary. Thinking about the role of the dresser in the production of the judicial image draws attention not simply to the function that dress plays in the law, but foregrounds the process of dressing up as a key aspect of the law's performance.

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