Common Law Codification: Lessons and Warnings from Twenty-First Century Australia

2020 ◽  
Vol 10 (3) ◽  
pp. 183-206
Author(s):  
Mark Lunney
Keyword(s):  
Common Law ◽  
Tort Law ◽  
First Century ◽  
Rare Phenomenon ◽  
The Common ◽  
The Law ◽  
Twenty First Century ◽  
Negligence Law

AbstractCodification of tort law is a rare phenomenon in the common law world. However, building on earlier precedents, in the early 2000s, Australian jurisdictions embarked on a project of placing important general principles of negligence law into legislation. This article considers these provisions and argues that they can be considered as an attempt to codify certain parts of the law of tort. Both the process by which this codification took place, and the contents of the ‘codes’, provide interesting comparative material for civilian jurisdictions with codified tort law as well as for common law systems.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

Blackstone

2018 ◽  
Author(s):  
John V. Orth
Keyword(s):  
Significant Role ◽  
Common Law ◽  
Legal Education ◽  
First Century ◽  
Legal Development ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The University ◽  
Law Professors

This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.

Administrative Law

2021 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Public Law ◽  
First Century ◽  
Government Agencies ◽  
Private Law ◽  
The Subject ◽  
The Common ◽  
Twenty First Century

Administrative Law explains the constitutional principles of the subject and their application across the range of twenty-first-century administrative law. The focus on constitutional principles is meant to bring some order to the very diverse topics with which you need to deal if you are to understand this very complex branch of public law. The common law courts, government agencies, and Parliament have developed a wide variety of techniques for controlling the enormously diverse activities of twenty-first-century government. Underlying all that variety is a set of constitutional principles. This book uses the law of judicial review to identify and to explain these principles, and then shows how they ought to be worked out in the private law of tort and contract, in the tribunals system, and in non-judicial techniques such as investigations by ombudsmen, auditors, and other government agencies. The aim is to equip the reader to take a principled approach to the controversial problems of administrative law.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

The Adequacy of the Law of Torts

1961 ◽  
Vol 19 (1) ◽  
pp. 44-61 ◽  
Author(s):  
Cecil A. Wright
Keyword(s):  
Public Interest ◽  
Common Law ◽  
Strict Liability ◽  
Freedom Of Speech ◽  
Tort Law ◽  
Accidental Injury ◽  
The Common ◽  
The Law

Any attempt to evaluate the adequacy or inadequacy of tort law in general is bound to fail unless the scope of inquiry is severely limited. All attempts to find some unifying principle have failed. In light of the diverse interests involved which may be political, domestic or economic, and the purposes to be achieved, which may range from the quasi-criminal to determination of title to property, it would be a miracle of intellectual abstraction if it were otherwise.To confine inquiry to “accidental” injuries, i.e., those arising as a by-product of some lawful activity carried on for reasons other than the invasion of a plaintiff's interest, is helpful but not satis-factory. For example, “accidental” injury to a person's privacy, honour or reputation could fall in this category. While issues of “strict liability” or liability for “fault” permeate this field and have, in England and Canada, been developed by the courts in favour of the former, public interest in freedom to disseminate news and the encouragement of freedom of speech is an important factor here which makes it impossible to compare other branches of the law where there is no counterpart. Here too legislation is playing an important role. By statute in England attempts have been made to mitigate some of the harsher features of strict liability by eliminating damages and substituting an “offer of amends” for accidental and non-negligent defamation. While legislation in Canada has been widespread, particularly with regard to the total or partial abolition of the distinction between libel and slander, such legislation has nowhere changed the strict liability of the common law.

History's living legacy: an outline of ‘modern’ historiography of the common law

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 251-324 ◽  
Author(s):  
K J M Smith ◽  
J P S McLaren
Keyword(s):  
Legal History ◽  
Common Law ◽  
First Century ◽  
Historical Interpretation ◽  
The Past ◽  
Capacity To Act ◽  
Steady Current ◽  
The Common ◽  
The 1950S ◽  
Twenty First Century

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.

Liability in Bailment in Israeli Law — Rethinking Benefit

1997 ◽  
Vol 31 (4) ◽  
pp. 744-753 ◽  
Author(s):  
Shirley Renner
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Primary Object ◽  
The Common ◽  
The Law

While “classical” tort law deals with the liability of those unlawfully in possession of goods for their damage or loss, the law of bailment deals with the liability of those lawfully in possession of goods for their damage or loss.The Israeli statute relating to bailment, The Bailees Law, more closely resembles the law of bailment in common law, than its civil law counterpart, the law of deposit. Similar to the law of bailment in common law, Israel's Bailees Law covers both possession where the primary object is the safekeeping of goods, e.g., a warehouseman, and possession where the primary object is other than safekeeping of goods, e.g., chattel hire, hire of work and labour to be performed upon a chattel, and a pledge.In terms of liability for the loss of or damage to the goods, the Israeli statute roughly resembles the “traditional” law of bailment in the common law, which distinguishes different kinds of bailment according to the existence and location of benefit received.

Sign in / Sign up

Export Citation Format

Share Document