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Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.


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Book
S Elliston1
06 Nov 2007
TL;DR: This work summarizes current standards in decision making concerning children and outlines best interests, which have changed since the publication of previous work on best interests between children and medical research.
Abstract: Topical and compelling, this volume provides an excellent re-evaluation of the ‘best interests’ test in the healthcare arena; the ways in which it has developed, the inherent difficulties in its use and its interpretation in legal cases concerning the medical care of children. Comprehensively covering both the English and Scottish position within the context of the European Convention of human Rights and the UN Convention on the Rights of the Child, the author examines a wide range of healthcare situations, from the commonly occurring to the unusual, offering a detailed analysis of legislation, case law, cases and their implications. It includes discussions on: the extent to which a child’s body can be examined, operated on and affected by medicines, devices or procedures intended to bring about medical change the appropriate scope of parental choice and authority and at what stage of their development children should be allowed to make their own decisions the response to situations where the interests of children may be in conflict – the cases of conjoined twins or the donation of organs to siblings. This work is a key resource for postgraduates and researchers working and studying in the fields of law, healthcare and medicine.

52 citations

Journal ArticleDOI
TL;DR: In this article, the authors investigate the evolution of common law under overruling, a system of precedent change in which appellate courts replace existing legal rules with new ones, and they find that overruling leads to unstable legal rules that rarely converge to efficiency.

52 citations

Book
21 Jul 2009
TL;DR: The Common Law in Two Voices as mentioned in this paper explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism in Hong Kong and provides important insights into the social nature of language and the work of institutions.
Abstract: Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has significantly altered the everyday working of the common law in China's most Westernized city. In The Common Law in Two Voices, Ng explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism. This first-ever ethnographic study of Hong Kong's unique legal system in the midst of social and political transition, this book provides important insights into the social nature of language and the work of institutions. Ng contends that the dilemma of legal bilingualism in Hong Kong is emblematic of the inherent tensions of postcolonial Hong Kong. Through the legal dramas presented in the book, readers will get a fresh look at the former British colony that is now searching for its identity within a powerful China.

51 citations

Posted Content
TL;DR: Dicey as discussed by the authors argued that a state of emergency is a lawless void, a legal black hole, in which the state acts unconstrained by law, and that the sovereign has the authority to use law to suspend the law.
Abstract: One curious feature of states of emergency is that they are brought into being by law. Law is thus used to suspend its own operation. Carl Schmitt thought that this fact is evidence of a contradiction at the heart of liberal theories of the rule of law. Liberalism aspires to banish the state of emergency or exception from the legal order because it wants a world where all political authority is subject to law; A state of emergency is a lawless void, a legal black hole, in which the state acts unconstrained by law. Dicey seems straightforwardly to deny that the sovereign has the authority to use law to suspend the law. My argument is that Dicey responded to both limbs of Schmitt's challenge. Not only is it the case that it is for the court to decide whether the government has a justified claim that there is an emergency--the first limb-but the courts must assess whether the actual responses to the emergency are legal--the second limb. I also argue that Dicey's response is more powerful because it is made within the context of a common law legal order, one in which he acknowledges that an explicit statute can legalize both immorality and illegality.One needs to maintain Hans Kelsen's Identity Thesis, that the state is totally constituted by law. When a political entity acts outside of the law, its acts can no longer be attributed to the state and so they have no authority. Dicey, on my understanding, subscribes to the same thesis.I argue, however, that in order to provide a workable version of the Identity Thesis, it is important to depart in some significant respects from Dicey. Judges are not always required be the principal guardians of the rule of law. Emergencies might require that Parliament or the executive play the lead role. The rule of law project does not require allegiance to a rigid doctrine of the separation of powers in which judges are the exclusive guardians of the rule of law. Nevertheless, judges will always have some role in ensuring that the rule of law is maintained even when the legislature and the executive are in fact cooperating in the project. Judges also have an important role in calling public attention to a situation in which such cooperation wanes or ceases.It is in seeing that judges are but part of the rule of law project that one can begin to appreciate the paradox that arises when rule by law, rule through a statute, is used to do away with the rule of law, to create a legal black hole. I claim that there is a contradiction in the idea of legal black hole. In other words, one cannot have rule by law without the rule of law. But precisely because I want to argue that judges are but part of the rule of law project, I also am not committed to the conclusion that judges are always entitled to resist statutes that create legal black holes. Whether they are so entitled will depend on the constitutional structure of their legal order. But whatever that structure, they are under a duty to uphold the rule of law. Even if they are not entitled to invalidate a statute that creates a legal black hole, it is their duty to state that the legislature has made a decision to govern arbitrarily rather than through the rule of law.

51 citations

Posted Content
TL;DR: In this article, the evolution of the preliminary reference procedure and its adjustment to the constitutional pluralism of the Union is discussed, and the case law on Article 234 in the period between 1998 and the first half of 2002 is examined.
Abstract: In the process towards European constitutional rediscovery, set in motion by the Treaty of Rome, Article 177 (now 234) has been by far the most important instrument of change. By providing the meeting point for the Community and the national legal orders, it has enabled the ECJ, more than any other jurisdictional provision, to define its mandate, establish the Anew legal order, and develop constitutional doctrine. This article discusses the evolution of the preliminary reference procedure and its adjustment to the constitutional pluralism of the Union; it examines selectively the case law on Article 234 in the period between 1998 and the first half of 2002; and assesses trends in the use of preliminary references by national courts. It is divided as follows. The first part traces the development of the preliminary reference procedure. The second part discusses demand and supply for references and the measures chosen to address the mounting increase in the Court's case law. The article then turns to examine recent case-law in three areas: the control of admissibility of references; the definition of court or tribunal; and the jurisdiction of the ECJ to interpret Community measures where they apply by virtue of national law. The next section discusses varying perceptions of the preliminary reference procedure by national courts. The final parts contains concluding remarks.

51 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
202358
2022195
2021460
2020774
2019920
2018981