Showing papers on "Common law published in 1969"

The civil law tradition;: An introduction to the legal systems of Western Europe and Latin America

Abstract: Designed for the general reader and students of law, this is a concise history and analysis of the civil law tradition, which is dominant in most of Europe, all of Latin America, and many parts of Asia, Africa, and the Middle East. This new edition deals with recent significant events& such as the fall of the Soviet empire and the resulting precipitous decline of the socialist legal tradition& and their significance for the civil law tradition. The book also incorporates the findings of recent important literature on the legal cultures of civil law countries.

Historical foundations of the common law

Abstract: PART I: INSTITUTIONAL BACKGROUND PART II: PROPERTY IN LAND PART III: OBLIGATIONS PART IV: CRIME

The Centralisation of Justice

Abstract: This chapter focuses on the institutional background of justice. The common law is the by-product of an administrative triumph, the way in which the government of England came to be centralized and specialized during the centuries after the conquest. The materials of the common law, therefore, were the customs of true communities whose geographical boundaries had divided peoples and cultures in some cases, and not just areas of governmental authority. Courts were the governing bodies of their communities, dealing with all their public business. After the conquest, as before it, the primary government of England was through counties and hundreds. The geographical subdivisions of counties, most often known as hundreds and obscure in origin, also had their courts.

The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution

Abstract: In this article, the author explores the principle of unjust enrichment as formulated by courts of common law jurisdictions in Canada. He analyzes and assesses that principle in light of comparable principles applied in England, Australia and Quebec. He argues that while sound in many respects, the Canadian principle of unjust enrichment often is characterized by a relative lack of analytical rigour. He concludes by suggesting that Canadian courts might profitably consider the approaches adopted in other jurisdictions.

Individual Property Rights on Canadian Indian Reserves: A Review of the Jurisprudence

Abstract: This article explores lite case law on individual property rights on Canadian Indian reserves. By surveying the courts' treatment of customary holdings, Certificates of Possession and the procedure for valuing leasehold reserve land, the authors find that the courts have had great difficulty in interpreting those rights that have no statutory basis or off-reserve equivalent. In contrast, the courts have been much more Consistent in interpreting those property rights that derive their authority from a statute and have similarities to off-reserve legal concepts.

Evidence Not in a Form Familiar to Common Law Courts: Assessing Oral Histories in Land Claims Testimony after Delgamuukw v. B.C.

Abstract: The Supreme Court of Canada's recent decision in Delgamuukw v. B.C. permits a reconsideration of the place of oral traditions in aboriginal land claims cases. The Court advises that oral histories be given "independent weight," and that at trial McEachern C.J. had not "assessed the oral histories correctly. " However, the Supreme Court of Canada's view of how to weigh oral history in testimony is troublesome, in that then-Chief Justice Lamer informs us that such key features of oral histories as "moral obligations " are "tangential to the ultimate purpose of the fact-finding process at trial — the determination of the historical truth." This article considers how courts will be able to evaluate oral histories in the future, if such key features of testimony are to be discarded.

American Constitutional Law

Abstract: Originally published in 1955, this book by legal historian Bernard Schwartz presents the workings of American constitutional law for a non-American audience. Schwartz explains in the preface that 'essential to an understanding of the United States is some knowledge of the American system of constitutional law. For it is no exaggeration to say that the Federal Constitution is the fulcrum upon which American institutions turn.' This book will be of value to legal historians and anyone with an interest in the American legal system.

The Common Law in Lesotho

Abstract: Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

The Relationship between Chinese Law and Common Law in Malaysia, Singapore, and Hong Kong

Abstract: excuse for adding yet another account is this: A technical legal description of this relationship, focusing on such topics as marriage, divorce, inheritance, and so on, adds a real and important dimension to the study of culture contact. Except in Hong Kong, common law is no longer the dominant political system; it has become, with local variations, "government law" in the territories under consideration. Since law is the instrument most often used in the implementation of new government policies affecting family matters, for example, it seems important that some attempt be made to describe the techniques of interaction and to set out the present law as accurately as possible. Hopefully this essay will serve as skeleton reference material on the relation between these two systems of law. To accomplish this aim I will: (a) describe the ways in which the common law has been adapted so as to take account of Chinese law, (b) state the "principles of Chinese law" which the courts have formulated in the course of this adaptation, and (c) note the points at which the respective courts in the three territories have differed in their interpretation regarding the content of Chinese law. The materials on which this paper is based are the relevant statutes and judicial

Recent Developments in Wrongful Dismissal Laws and Some Pointers for Reform

Abstract: This paper examines recent developments in the law of wrongful dismissal. It demonstrates that the current common law fails to regulate satisfactorily terminations of employment and proposes an alternative statutory scheme. Part considers the "minimum contents" required of fair and just system of employment termination. Part II examines the common law response and its inadequacies. Part III suggests proposals for reform, drawing on the ex periences of statutory "just cause"protections in Nova Scotia and England and in Canadian grievance arbitration. Also, the proposed amendments to the Canada Labour Code in bill C-8,1 which introduces "just cause"protections for workers within Federal jurisdiction are considered.

Invasion of Privacy

Abstract: The lack of coherent theory of privacy is at the root of the inadequacy of present-day legal measures to afford protection of the indivisible "social space" surrounding each individual Professor Williams, in recog nizing some of the difficulties involved in defining the sphere of an individual's interest in privacy, emphasizes the threat posed by the gathering and dissemination of information about an individual without his knowledge or authority. This threat, says Professor Williams, cannot be neutralized by the individual himself; there must be judicial or legis lative intervention on his behalf. Common law torts, while they do give some protection, are not sufficient: the remedies are both slow and costly, and, of course, are not available to one who is not aware that his privacy has been invaded. Statutory enactments such as those in Manitoba and British Columbia give only broad and general protec tion against invasions of privacy; and other legal protection (which only incidentally affects privacy-intrusive conduct) is both sporadic and limited. rational theory of privacy, the author concludes, is essential to effective protection against invasions ofprivacy.

A Note on the Construction of the Gold Coast Reception Statute

Abstract: From the evidence of the minute paper which preceded the drafting of the first African reception statute, it may be asserted that the intendment of the Colonial Office officials was: (1) that the limiting date in the statute was to apply as well to the common law and the doctrines of equity as to the statutes of general application; (2) that the phrase “Imperial Laws”, refers as well to the common law and doctrines of equity as to the statutes of general application, so that the West African courts were granted a plenitude of power to determine the applicability to local conditions of judge-made law as well as legislation. It is difficult, however, to determine the intendent of the phrase, “statutes of general application”, in the premises.

Charles Sumner, the Constitution, and the Civil Rights Act of 1875

Abstract: IN 1883, the United States Supreme Court, proceeding on traditional common law precedents, declared the Civil Rights Act of 1875 unconstitutional. The Act thereafter sank into the recesses of obscurity. However, in the legislative history of the Act there lies buried a unique feature which is now significant in light of the 1954 Supreme Court decision in Brown v. Board of Education. In this case, the Court did what Charles Sumner had urged as early as 1846, interpreting the Constitution not by the hallowed precedents of the past but by the social realities of the present. As Sumner pressed for the passage of a civil rights act in the early 187o's, he expressed something of the judicial-social pragmatism that would not take permanent form in legal thought until over a half century later in the judicial philosophy of Oliver Wendell Holmes and Louis Brandeis. It was this philosophy which ultimately found articulation in the civil rights context of the Brown ruling, thereby annulling at least the effect of the 1883 Civil Rights Cases decision which held the Civil Rights Act of 1875 unconstitutional. It was Sumner's search for a new rule of constitutional interpretation that makes the legislative history of the Civil Rights Act of 1875 significant. And it is a tragedy of our time that the courts of Sumner's day failed to accept the wisdom of the Senator's position, thereby requiring the present generation to re-win a victory which should have been secured in 1875.

The Trial Judge: Pilot, Participant, or Umpire?

Abstract: The recent decision in Phillips v. Ford Motor Co. of Canada Ltd. et al.t has reopened question which some might have considered to be somewhat settled: the role and function of the trial judge. Professor Silverman has taken the Phillips decision as cue for making comprehensive analysis of the English and Cana dian case law concerning the trial judge's function, in civil as well as criminal cases. Such issues as the rule requiring the presentation of evidence in open court, the limitations on the trial judge's right to call witnesses, his interference in the examination of witnesses and his intervention in the trial as whole are examined. Professor Silverman notes that although there may be dicta in some criminal and civil cases which apply to both, the better approach for the trial judge is to restrict himself "as much as possible" to the principles set out in cases of the same nature (criminal or civil) as the one before him. However, the author does lay down several general propositions delineating the boundaries of the trial and the role of the trial judge, which are applicable to both criminal and civil cases. Professor Silverman concludes, that although a trial judge may be pilot he "is certainly more than an umpire, watching the sporting-theory of litigation in action; and he is less than participant in that he should not enter into the fray of combat nor take on the mantle of counsel".

The Element of Wrongful Pressure in a Finding of Duress

Abstract: The author expounds and criticizes the traditional notion that, in a claim for restitution based on duress, it must be shown that the victim was threatened with some unlawful action. After setting forth the common law development of duress, including comparisons between American and Commonwealth jurisprudence, the author argues that on occasion courts have shown a willingness to abandon the traditional view of what type of act must constitute wrongful pressure. In particular, some American courts have adopted a more flexible approach, using as a test of wrongful pressure, not the unlawfulness of the threatened act, but rather the coercive motive of the oppressor. Finally, the author discusses the possibility that duress could be extended to cover the situation where the threat involved is a denial of future contracts.

A Neglected Theory of Legal Reasoning.

Abstract: In scribe his Introduction the essential to features Legal Reasoning, of the judicial Edward Levi as attempts he sees it to operdescribe the essential feature of the judicial process s h sees it operating in the field of American case law and in the interpretation of statutes and constitutional provisions. With respect to case law, the characteristic mode of argumentation used by the courts in this area is, in his opinion, reasoning by example.1 It is a three-step process described by the doctrine of precedent in which a proposition descriptive of the first case is made into a rule of law and then applied to a next similar situation. The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case. Levi points out that "the rule of law inherent in the first case" is not necessarily or even typically the rule of law announced by the judge in that case. It is disturbing to find, he declares, that "the rules change from case to case and are remade with each case". This change in the rules, Levi believes, is the indispensable dynamic element in the growth of the law.2

The Tentative Emergence of Student Power in the United States

Abstract: From colonial times through mid-twentieth century America, the status of students in colleges and universities within the United States depended substantially upon the sufferance and pleasure of the colleges themselves. While the great majority of public and private universities (with such notable exceptions as Yale) supported some sort of student "government," these governments maintained only a minimum of authority over matters of peripheral institutional importance, operating largely as impotent facsimiles of parliamentary processes. Each might adopt parliamentary resolutions vocalizing student sentiment on institutional policy or matters of national concern, but few were conceded any authority beyond that of memorializing or petitioning. Standards respecting admission to the college, curriculum, faculty composition, capital construction, tuition, salaries, research, honor codes, personal misconduct, alumni relations, government support, and virtually all other matters of substance were reserved ultimately to the disposition of non-student bodiles within and without the college. Aside from some institutional practices delegating limited control to student organizations over athletic budgets and student operated campus newspapers, not even the administration of standards directly affecting student campus life itself was generally committed to significant student participation. Indeed, not until the United States was well into the 1960s did the phrase "student power" acquire sufficient conversational currency even to provide a meaningful or identifiable concept, much less a specific content. Only with the success of civil disobedience as a short-lived instrument of social change in the early 'sixties, developed initially and hesitantly by black students to dramatize community conditions of racial discrimination off campus, did there gradually develop a spillover effect into the campuses themselves.' Only then, through

Land Rights: The Australian Aborigines Have Lost a Legal Battle, But

Abstract: Concern for aboriginal rights has been mounting in many former British colonies in the last decade. Nowhere is this more true than in Australia where there are no treaties and few statutes which make any attempt to protect the rights of the original inhabitants of the continent. But the decision in Milirrpum Ors. v. Nabalco Pty. Ltd. The Commonwealth of Australia appears to have "blocked further action through the courts and . . forced the debate into the political arena" by refusing to recognize any legal obliga tion on the Crown to take cognizance of aboriginal rights based on customary native tenure as "their relationship with the land could not be characterized as proprietary interest." But the authors submit that the Milirrpum court "failed to discover the existence of communal native title" because they operated in conceptual framework, the law of real property, which was not equal to the task. Instead the authors suggest that such rights stem from the aborigines'status as British subjects (and "central to this issue is the distinc tion between colonies acquired by conquest and those acquired by peaceful settlement"). In colonies acquired by peaceful settlement or annexation the aborigines were British subjects under the protection of the common law. And on the basis of case law, aborigines do have some rights at common law: their title has been characterized as right of "qualified" or "modified" dominion over the land, to the extent, at least, of occupation or enjoyment of the land, which is consistent with the Crown's right of pre-emption (exclusive right to extinguish native title). The authors cite the example of New Zealand and the British experience with the Maoris (where the theory was cessation with consent), offering detailed and careful examination of historical materials to support their view that there does exist doctrine of communal native title. They suggest that where aborigines enjoy the status of British subjects, the Crown's pre-emptive right

Restitution of Unlawfully Levied Taxes: Survey and Comparative Analysis of Developments in Canada, Australia, and England

Abstract: The common law traditionally has not been sympathetic to taxpayers wishing to recover unlawfully levied taxes from public authorities. Because a mistake of law did not, as a general rule and in itself, give rise to a right to restitution, and because courts refused to find that the mere fact that monies had been demanded by public authorities amounted to compulsion, taxpayers were often left without a remedy. Fortunately, important judicial developments have occurred in Canada, Australia, and England in the past decade. The demise of the infamous mistake of law rule and the recognition in England of the Woolwich principle have facilitated the recovery of unlawfully levied taxes. Yet, these developments have revealed profound differences as to which defences should be made available to public authorities. The "fiscal chaos" and "passing on" defences proposed by three Justices of the Supreme Court of Canada in the Air Canada case have not been well received in Australia and England. This article traces the evolution of the traditional common law approach to the problem of unlawfully levied taxes, offers a survey of the judicial developments in this area since the past decade and proposes a comparative analysis of the approaches adopted in each jurisdiction.

Sole Distributorship Agreements—A Comparative View*

Abstract: 1. ECONOMIC as well as legal problems arising from sole distributorship agreements (frequently also called exclusive dealing agreements) have for many years been discussed in the United States and in several European countries, especially in Germany and France. This concern with a widely used form of commercial arrangements for the distribution of goods, usually consisting of co-operation between a manufacturer and an independent trader as distributor, is due to the intervention of the legislator by enactments of restrictive practices laws, e.g., the American Sherman Act of 1890 and the Clayton Act of 1914, the German Law against Restraints of Competition of 1957 (with its recent amendments) and French Decrees of 1945, 1953 and 1963. Although the concept of "restraint of trade"' is a timehonoured institution of the common law intended to secure a man's freedom to use his capacity to work unfettered, English statute law has only marginally restricted the contractual freedom of the two parties to such agreements and English courts seem to have for a long time shown a fairly strong tendency to refrain from disturbing this freedom except in very special circumstances. 2. Fortunately, we have now the benefit of an important recent decision by the House of Lords in the case of Esso Petroleum Co. Ltd.1 v. Harper's Garage (Stourport) Ltd. in which, while dealing with a so-called solus agreement, the whole scope of the application of the doctrine of restraint of trade was reviewed, including its bearing on the type of sole distributorship agreements. These were referred to as ordinary or positive commercial agreements 2 or as normal

Age of the Living Dead: Personality Rights of Deceased Celebrities

Abstract: This article examines the legal issues arising from digital technology that allows filmmakers to create features starring flawlessly rendered images of deceased celebrities, known as "synthespians." Recent developments in the law of personality rights in California have established that deceased stars' personality rights extend beyond death, permitting heirs to seek damages for wrongful uses. In Canada the tort of misappropriation of personality has been extended after death both at common law and in the privacy acts of some provinces. This article examines instances where courts have ruled against uses, often where there has been commercial exploitation, of the dead actor s persona and concludes with recommendations on strategies to regulate this area of the law.