scholarly journals Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Tina Kotzé ◽  
Zsa-Zsa Boggenpoel
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Narrow Sense ◽  
Underlying Principle ◽  
Living Together ◽  
The Common ◽  
Nuisance Law ◽  
The Republic ◽  
The Relationship

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

scholarly journals HOW STRICTLY DID THE ATHENIAN COURTS APPLY THE LAW? THE ROLE OF EPIEIKEIA

2013 ◽  
Vol 56 (1) ◽  
pp. 27-48 ◽  
Author(s):  
EDWARD HARRIS
Keyword(s):  
Common Law ◽  
General Rule ◽  
Nicomachean Ethics ◽  
The Common ◽  
The Law ◽  
Principles Of Justice ◽  
The Relationship ◽  
The City ◽  
Positivist Approach

Abstract H. Meyer‐Laurin has claimed that the Athenian courts took a stricti iuris approach to the law and did not take extenuating circumstances into account. Other scholars (Mirhady, Todd) have claimed that the courts sometimes ignored the law and took extra‐legal considerations into account, which was called ‘fairness’ (epieikeia). The essay begins with a careful reading of Aristotle's analysis of ‘fairness’ (epieikeia) in the Nicomachean Ethics and the Rhetoric and draws on an important essay by J. Brunschwig. Fairness was not a doctrine that attempted to undermine the authority of the law or placed the law of the city in opposition to the unwritten laws or the common law of mankind. Nor did the application of fairness introduce non‐legal factors into adjudication. Rather, fairness dealt with the problem of treating exceptions to the general rule contained in a specific written law. The essay then shows how litigants used arguments based on fairness and how the courts sometimes took extenuating circumstances into account. When Athenian judges swore to decide according to the laws of Athens, they did not just consider the law under which the accuser had brought his case. They could also take into account general principles of justice implicit in the laws of Athens as a whole. In this way, they avoided a rigid positivist approach to law. Finally, the essay sheds some light on the relationship between Aristotle's Rhetoric and the arguments used in the Athenian courts.

scholarly journals The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts

2014 ◽  
Vol 42 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Dan Meagher
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Political ◽  
New Model ◽  
Indirect Influence ◽  
The Common ◽  
The Relationship ◽  
Direct Use

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights (‘PJCHR’) which regularly reports to the Parliament on the compatibility of its proposed laws with human rights. This article looks at the relationship between the Act – and these two new mechanisms – and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

Common law environmental protection: the future of private nuisance, Part I

2014 ◽  
Vol 6 (1/2) ◽  
pp. 21-42 ◽  
Author(s):  
Robert Charles Palmer
Keyword(s):  
Environmental Protection ◽  
Common Law ◽  
Primary Sources ◽  
Content Type ◽  
Secondary Sources ◽  
The Supreme Court ◽  
The Common ◽  
Nuisance Law ◽  
Regulatory Controls

Purpose – This article aims to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates specific areas of the tort that are theoretically unresolved in order to ascertain the potential future role it may play before highlighting the capacity for injunctions to coerce restorative environmental justice. Design/methodology/approach – The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary. Findings – Nuisance developed to a point in the nineteenth century where a “theory of nuisance” emerged, which did not tolerate injury to health or the property of another. Recent judicial activity has visibly adulterated that theory: this article casts doubts on juridical restrictions regarding health and property suggesting they may not withstand the scrutiny of the Supreme Court if, and when, they are tested. Originality/value – This paper recognises that nuisance law has a positive future in environmental protection provided that the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.

scholarly journals The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor

2017 ◽  
Vol 48 (4) ◽  
pp. 547
Author(s):  
Claudia Geiringer
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Attorney General ◽  
Bill Of Rights ◽  
Close Analysis ◽  
The Common ◽  
The Relationship ◽  
Court Of Appeal

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.

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 Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Richard Shay ◽  
Ndivhuwo Ishmel Moleya
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Trade Mark ◽  
Constitutional Rights ◽  
Trade Mark Infringement ◽  
Correct Conclusion ◽  
General Obligation ◽  
The Common ◽  
Judicial Reasoning ◽  
The Republic

This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

The Trade Mark, Other Product Designations, and Goodwill

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Subject Matter ◽  
Common Law ◽  
Trade Mark ◽  
Geographical Indication ◽  
Passing Off ◽  
Rights Protection ◽  
Essential Properties ◽  
The Subject ◽  
The Common ◽  
The Relationship

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

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