scholarly journals THE PROBLEM OF THE NON-JUSTICIABILITY OF RELIGIOUS DEFAMATIONS

2015 ◽  
Vol 27 ◽  
pp. 241-257 ◽  
Author(s):  
Peter Smith
Keyword(s):  
Catholic Church ◽  
Common Law ◽  
The State ◽  
Modern Times ◽  
Civil Case ◽  
Magna Carta ◽  
The Common ◽  
English Law

English law has long held the principle that religions should be free from interference by the state in certain matters. The original 1215 edition of the Magna Carta proclaimed, as its first article, ‘THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.’This article was intended to protect the established Catholic Church from the powers of the state, specifically from interference in church elections by the executive in the form of the person of the monarch. The notion that religions were institutions with practices and beliefs that were outside the control of the state in certain respects was adopted by the common law and is found in modern times in the principle of non-justiciability on the matter of religion in certain types of civil case. 

Is Custom a Source of Law in Israel?

1974 ◽  
Vol 9 (2) ◽  
pp. 221-233
Author(s):  
Ya'akov Meron
Keyword(s):  
Common Law ◽  
Civil Code ◽  
The State ◽  
First Year ◽  
British Mandate ◽  
Statutory Authority ◽  
The Common ◽  
English Law ◽  
First Time

This question, evoked for the first time over thirty years ago and apparently resolved some twenty years ago, is being presently hotly debated as a result of the Bill Repealing Ottoman Laws, which is intended to abrogate, inter alia, the remains of the Mejelle, the Ottoman Civil “Code”, still in force in Israel. Throughout the Courts' examination of the question there was never any doubt that the answer is to be found in the Mejelle. For this reason it is now feared that, with the latter's disappearance, no statutory authority will be left in Israel law recognizing custom as a source of law. Admittedly, in the absence of any provision in the Ottoman law still prevailing in this country, article 46 of the Palestine Order-in-Council, 1922 might once again allow recourse to English Common law. Moreover, under the British Mandate in Palestine, reference was made to the Common law on this subject. Since the establishment of the State, however, less significance is attached to this reference. Recently it has even been stressed that there is no point in trying to adopt the English notion of custom, whose requirements are so rigid (notably as to antiquity) that the existence of a custom is not recognized unless it dates from 1189, the first year of the reign of Richard I. Indeed, this lack of flexibility renders recourse to English law, on this point, totally unworkable and merely underlines the necessity of finding a solution within the local—in this case—Ottoman law.

Bishop Gosse of Liverpool (1865–1872) and the importance of being English

1982 ◽  
Vol 18 ◽  
pp. 433-447 ◽  
Author(s):  
Peter Doyle
Keyword(s):  
Catholic Church ◽  
Common Law ◽  
The State ◽  
Ordinary Power ◽  
The Common ◽  
Set Up ◽  
The Church ◽  
The Catholic Church

The papal bull Universalis Ecclesiae of 1850 set up a hierarchy of bishops with ordinary power to replace the vicars apostolic who had ruled the catholic church in England since 1688. It stated explicitly that the new bishops were to have all the necessary powers to rule their dioceses in the same way as titular bishops elsewhere, and it spoke clearly about the resumption of the ‘common law of the church’ in England. Yet the commitment of the Roman authorities to a fully independent hierarchy was not wholehearted. The church in England was to remain under the aegis of the Congregation of the Propagation of the Faith (Propaganda), whose normal brief was to look after missionary territories not stable enough to have properly constituted hierarchies. According to the bull, the English bishops were to send regular reports on the state of their dioceses to Rome, and were to be diligent in informing Propaganda ‘of everything which they shall think profitable for the spiritual good of their flocks’.

The Nobility and the State in Angevin and Post-Angevin England

2019 ◽  
pp. 401-441
Author(s):  
Peter Coss
Keyword(s):  
Thirteenth Century ◽  
Power Relations ◽  
Common Law ◽  
The State ◽  
Half Century ◽  
Magna Carta ◽  
History Of ◽  
The Common ◽  
The Impact

This chapter examines the fortunes of the aristocracy in England between the mid-twelfth and the mid-thirteenth century, beginning with the impact of Angevin kingship upon the aristocratic world and the great aristocratic revolt which led to Magna Carta. We will look at the impact of the Common Law upon both the high aristocracy and minor aristocracy/knights. We turn then to examining the changes that were taking place within the aristocracy itself within this period, that is to say the impact of chivalric knighthood and the delineation of nobility. The emphasis throughout is upon power relations rather than the development of the ‘constitution’. The chapter also looks at aristocratic values through the near-contemporary History of William the Marshal. The last part of the chapter looks at the half-century following Magna Carta, not in teleological terms. but in its own right. Finally, the chapter re-examines the origins of bastard feudalism.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Common Lawà l'americaine

1966 ◽  
Vol 1 (4) ◽  
pp. 562-579 ◽  
Author(s):  
A. M. Apelbom
Keyword(s):  
Common Law ◽  
The Other ◽  
British Occupation ◽  
Other Hand ◽  
Two Generations ◽  
The Common ◽  
English Law ◽  
Considerable Body ◽  
Clear Line

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

Nature Versus the Common Law

2021 ◽  
Author(s):  
David B. Schorr
Keyword(s):  
Common Law ◽  
Local Environment ◽  
Water Law ◽  
Public Ownership ◽  
Normative Force ◽  
The Common ◽  
English Law

This article recovers a debate, played out over the course of a century, in courts across the « common law world », over whether nature had normative force in water law. It explores areas of water law, such as the extent of public ownership in rivers and the effects of shifting watercourses on ownership, in which some courts, not without controversy, departed from the established rules of English law in order to make rules more appropriate, as they saw it, to the local environment.

Simon of Pattishall, Pioneer Professional Judge

1977 ◽  
Vol 9 (2) ◽  
pp. 115-127 ◽  
Author(s):  
Ralph V. Turner
Keyword(s):  
Twentieth Century ◽  
Thirteenth Century ◽  
Twelfth Century ◽  
Common Law ◽  
Civil Servant ◽  
Law And Order ◽  
Middle Years ◽  
Magna Carta ◽  
English Law

The latter part of the twentieth century may not find many of us wishing to pay tribute to bureaucrats, but as Helen Cam reminded us, the civil servant “deserves more credit than he has yet had for building up and maintaining our precious tradition of law and order.” In the late twelfth century and the thirteenth century the process of “bureaucratization” first got underway in England. An early professional civil servant, one specializing in judicial activity, was Simon of Pattishall. His name surfaces in the records in 1190, and it disappears after 1216. His time of activity, then, coincides with an important period for English common law: the years between “Glanvill” and Magna Carta.Simon was one of that group of royal judges who might be termed the first “professionals,” a group that took shape by the middle years of Richard I's reign. By the time of John, about ninety men acted at various times as royal judges, either at the Bench at Westminster, with the court following the king, or as itinerant justices. Many of these had only temporary appointments, making circuits in the counties; but a core of fifteen, who concentrated on the work of the courts, can be regarded as early members of a professional judiciary. Simon of PattishalPs is perhaps the most respected name among the fifteen. He had the longest career on the bench, from 1190 until 1216. He founded a judicial dynasty, for his clerk, Martin of Pattishall, became a judge, as did his clerk, William Raleigh, who had as his clerk Henry of Bracton, author of the great treatise on English law.

Open Judiciary Worldwide

2020 ◽  
pp. 1207-1221
Author(s):  
Carlos E. Jiménez-Gómez
Keyword(s):  
Exploratory Study ◽  
Success Factors ◽  
State Of The Art ◽  
Common Law ◽  
The State ◽  
Preliminary Results ◽  
Critical Success ◽  
Learning Practices ◽  
The Common ◽  
Research Questions

Despite its origins, openness in the judiciary has expanded beyond transparency and, therefore, beyond the common law open justice principle. Several initiatives worldwide are echoing this trend and a new term, open judiciary, is arising as a way to address openness in the justice field. This chapter gives an overview of open judiciary initiatives worldwide, focusing on some of the most successful, in order to identify drivers of adoption, critical success factors, and preliminary results. The research is embedded in a broader exploratory study on the state of the art of open judiciary. The chapter is addressed to answer two of the research questions: What are some learning practices that can be identified worldwide in relation to openness in the judiciary? What are some of the most important lessons that can be learnt from these practices?

1. The English origins

2021 ◽  
pp. 7-17
Author(s):  
Amanda L. Tyler
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Habeas Corpus ◽  
Individual Liberty ◽  
Simple Idea ◽  
Magna Carta ◽  
The Common

This chapter traces the origins of the common law writ of habeas corpus, finding that it was born out of a simple idea: the need to serve the king and demand justification for the detention of one of his subjects. It was not so much for those courts to question the king himself, for he could do no wrong. This chapter details how all of this changed over the course of the seventeenth century, and specifically the important role that the English Habeas Corpus Act of 1679 played in this shift. As is also explored, Parliament’s objectives in passing the Habeas Corpus Act sprang from its intention to expand its power at the expense of the king much more so than a desire to protect individual liberty. But in time, Blackstone and others came to praise the Act as a “second Magna Carta” for curtailing the detention of so-called “state prisoners.”

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