scholarly journals Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames Stephen’s Indian Evidence Act of 1872: The Singapore Experiment and Lessons for Other Indian Evidence Act Jurisdictions

2012 ◽  
Vol 10 (1) ◽  
pp. 1-53
Author(s):  
Siyuan Chen
Keyword(s):  
Sri Lanka ◽  
Common Law ◽  
Case Law ◽  
The World ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law

AbstractIn many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be argued that these amendments have changed the paradigm of the admissibility of evidence under the statute and have also done little to clarify existing ambiguities in the law. This paper explains why and, given the near-complete absence of case law that has interpreted the amendments, offers a few tentative suggestions on possible ways forward. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, Singapore’s 2012 amendments may be of comparative interest to readers in a number of jurisdictions around the world particularly those in Asia such as Bangladesh, Brunei, Burma, Malaysia and Sri Lanka – these countries had adopted the iconic statute to varying degrees – and of course, to India itself. Many of these jurisdictions have also not made major amendments to their evidence legislation, and therefore there may be something to learn ahead of time from Singapore’s experiment.

scholarly journals The First and Fiftieth Years of Independent Burma's Law Reports

2004 ◽  
Vol 35 (2) ◽  
pp. 385 ◽  
Author(s):  
Myint Zan
Keyword(s):  
Common Law ◽  
Case Law ◽  
First Year ◽  
The Past ◽  
The World ◽  
The Law ◽  
Law Reports

This article compares the annual Law Reports of the first year of Burmese independence in 1948 with those published in the fiftieth year of Burmese independence (1998). In making the comparison, the author highlights the fundamental changes that occurred in the structure and composition of the highest courts in Burma, along with relevant background and factors effecting these changes. There was a movement away from the predominant use of English in 1948 towards judgments exclusively in Burmese in the 1998 Law Reports. Burma's neighbours, who shared a common law legal heritage, did not follow this trend after their independence. This shift, combined with Burma's isolation from the rest of the world, makes analysis of Burmese case law from the past three and a half decades very difficult for anyone not proficient in the Burmese language. This article tries to fill the lacunae as far as the Law Report from the fiftieth year of Burma's independence is concerned.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

English Foundations of American Law, 1500s–1776

2018 ◽  
pp. 48-74
Author(s):  
John B. Nann ◽  
Morris L. Cohen
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Case Law ◽  
Case Finding ◽  
Colonial Period ◽  
Legal Issue ◽  
Good Case ◽  
American Law ◽  
English Law ◽  
The Law

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

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.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

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.

scholarly journals The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification

2011 ◽  
Vol 48 (3) ◽  
pp. 569 ◽  
Author(s):  
Philip Bryden ◽  
Jula Hughes
Keyword(s):  
Empirical Study ◽  
Common Law ◽  
Case Law ◽  
Divergence Of Opinion ◽  
The Common ◽  
The Law

The "reasonable apprehension of bias" test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

6. Domicile, nationality, and habitual residence

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
Common Law ◽  
Civil Law ◽  
International Agreement ◽  
Habitual Residence ◽  
Choice Of Law ◽  
The World ◽  
Permanent Home ◽  
English Law ◽  
The Law ◽  
Personal Law

The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.

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