scholarly journals Can Academic Freedom Survive Performance Based Research Funding?

2013 ◽  
Vol 44 (3/4) ◽  
pp. 487 ◽  
Author(s):  
Petra Butler ◽  
Roderick Mulgan
Keyword(s):  
Academic Freedom ◽  
Political Science ◽  
Research Funding ◽  
Common Law ◽  
Science Research ◽  
Bill Of Rights ◽  
Funding Model ◽  
The Subject ◽  
The Common ◽  
The Right

Academic Freedom is a largely under-explored right in the common law. Performance or Output Based Research Funding is a relative new phenomenon in regard to the distribution of Government money. Even though this research funding model has been the subject of educational, sociological and political science research, surprisingly little research has examined the implications for academic freedom. This article attempts to fill that lacuna. It examines the right to academic freedom in the context of New Zealand's Bill of Rights Act 1990, and whether or not output based research funding is a justifiable limitation on the right to freedom of academia protected by that Act.  

scholarly journals Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the Companies Act 71 of 2008

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Christa Rautenbach ◽  
Brighton M Mupangavanhu
Keyword(s):  
Common Law ◽  
Social Science Research ◽  
Science Research ◽  
Company Law ◽  
Bill Of Rights ◽  
Commercial Law ◽  
Normative Framework ◽  
The Common ◽  
Research Questions ◽  
The Republic

Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisation and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context.

The Need for a Constitution in the United Kingdom

1979 ◽  
Vol 14 (3) ◽  
pp. 269-285
Author(s):  
Wilberforce
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Legal System ◽  
Common Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Flexible Instrument ◽  
The Common ◽  
Definition Of ◽  
The Right

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.I will start with a quotation from Lord Salmon. In a recent lecture, he said: In this country [U.K.] we have an unwritten constitution. I have always regarded this as a blessing and never agreed with the theoretical objections to it. It is superbly flexible and above all it has stood the test of time. It works—and works admirably. But I am beginning to wonder whether it might not be wise to evolve, not an elaborate written constitution but perhaps the equivalent of a modern Bill of Rights. A statute which should lay down our basic freedoms, provide for their preservation and enact that it could not be repealed save by, say, a 75% majority of both Houses of Parliament.One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

Natural Justice in the Australian Industrial Relations Commission

1993 ◽  
Vol 35 (1) ◽  
pp. 3-18
Author(s):  
Richard Naughton
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Subject Area ◽  
Legal Form ◽  
Natural Justice ◽  
The Subject ◽  
The Common ◽  
Industrial Disputes ◽  
The Right ◽  
The Relationship

The Australian Industrial Relations Commission is under a statutorily imposed duty to act in afair manner, but with minimum resort to technical legal form. In addition, it is required to act promptly and effectively to prevent and settle industrial disputes. Some interesting questions arise concerning the relationship between this duty to act fairly and the common law principles of natural justice. This review of the subject area concludes that the two central natural justice principles (the right to a hearing and the rule against bias) are applied in a flexible manner in commission proceedings. The federal tribunal is often required to balance the strict application of these principles against a series of other factors. These might include, for example, matters like the expense, inevitable delay and procedural difficulties associated with a slavish adherence to the rules of natural justice.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

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.

Theology as Work: The Mandatum and the Rights of Labor

Horizons ◽  
2002 ◽  
Vol 29 (1) ◽  
pp. 128-134
Author(s):  
Patrick T. McCormick
Keyword(s):  
Academic Freedom ◽  
Working Conditions ◽  
Common Good ◽  
Catholic Social Teaching ◽  
Social Teaching ◽  
The Common Good ◽  
The Common ◽  
The Right ◽  
The Church ◽  
Safe Working

ABSTRACTMany oppose the mandatum as a threat to the academic freedom of Catholic scholars and the autonomy and credibility of Catholic universities. But the imposition of this juridical bond on working theologians is also in tension with Catholic Social Teaching on the rights and dignity of labor. Work is the labor necessary to earn our daily bread. But it is also the vocation by which we realize ourselves as persons and the profession through which we contribute to the common good. Thus, along with the right to a just wage and safe working conditions, Catholic Social Teaching defends workers' rights to a full partnership in the enterprise, and calls upon the church to be a model of participation and cooperation. The imposition of the mandatum fails to live up to this standard and threatens the jobs and vocations of theologians while undermining this profession's contribution to the church.

Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate

2010 ◽  
Vol 11 (6) ◽  
pp. 656-670
Author(s):  
Kate Sutherland
Keyword(s):  
Academic Freedom ◽  
Common Law ◽  
Scholarly Work ◽  
Academic Journal ◽  
Canadian Law ◽  
The Common ◽  
The Impact ◽  
Defamation Law

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

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