How Benthamic Was the Criminal Law Commission?

2000 ◽  
Vol 18 (2) ◽  
pp. 427-432 ◽  
Author(s):  
Michael Lobban
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Precise Nature ◽  
Penal Law ◽  
The Common ◽  
The Relationship ◽  
Law Commission

Lindsay Farmer's argument that, in seeking to replace the common law with legislation, and in striving for a novel systematization of the relationship between civil and penal law, the criminal law commissioners of 1833-45 transformed the understanding of criminal law in relation to government is a powerful one. It is to some degree an inferential argument, positing that a reading of Bentham's theory of legislation allows us to understand the commissioners' work better, since Bentham “makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project.” It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.

6. Liability of Occupiers and Builders

2019 ◽  
pp. 243-277
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Common Law ◽  
Present Form ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Law Commission

Occupier’s liability is, essentially, part of the law of negligence, although it takes statutory form. Its present form is, moreover, the product of various successive legislative accretions. As such, prime importance must be attached to the wording of the statutes, assisted wherever necessary by reference to the preparatory publications of the Law Commission. This chapter will discuss the Occupiers’ Liability Act of 1957, which deals with the liability of Occupiers towards persons (‘visitors’) permitted to be on the Occupier’s land; the Occupiers’ Liability Act of 1984, that deals with the liability of Occupiers towards trespassers; and the liability of non-occupiers, such as vendors, landlords, and builders. It will also explore the relationship between the statutory regime, and the common law of negligence.

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.

Crime, Compurgation and the Courts of the Medieval Church

1983 ◽  
Vol 1 (1) ◽  
pp. 1-26 ◽  
Author(s):  
R. H. Helmholz
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Common Law ◽  
Source Material ◽  
Legal Development ◽  
Medieval Church ◽  
History Of ◽  
The Subject ◽  
The Common ◽  
The Relationship

The history of criminal law has claimed an increasing share of the attention of legal and social historians in recent years. Undeterred by Professor Milsom's verdict that in the area of English criminal law, ‘nothing worthwhile was created,’ historians have plunged into the study of doctrine and practice in the common law courts. The attractions of the source material are undoubtedly great. The law is relatively straightforward, at least compared to land litigation. The cases are interesting and sometimes sensational. The subject matter promises rewards in understanding the relationship between social change and legal development. And the study may even be immediately relevant, shedding light on current law enforcement problems.

2. An overview of the English legal system

2020 ◽  
pp. 26-69
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley ◽  
Birju Kotecha
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Law ◽  
European Convention ◽  
The European Union ◽  
System P ◽  
Key Concepts ◽  
The Common ◽  
Parliamentary Supremacy ◽  
The Relationship

This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. The overview highlights fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. There is a focus on ensuring you have a firm grasp of terminology and the differences between the criminal law and civil law. The relationship between the English legal system and the European Union (EU) and the European Convention on Human Rights (ECHR) is also distinguished and explained. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as other legal bodies and personnel in the English legal system, is provided.

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.

9. Mental conditions, intoxication and mistake

2021 ◽  
pp. 292-358
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
External Factor ◽  
Criminal Responsibility ◽  
Common Law ◽  
Burden Of Proof ◽  
Mental Condition ◽  
Individual Actor ◽  
The Common ◽  
The Individual ◽  
The Mind ◽  
The Relationship

This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

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.

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.

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