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.

Europe’s New Jury Systems: The Cases of Spain and Russia

Abstract: The recent reintroduction of trial by jury in both Russia (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the longterm trend toward the elimination of the classic jury in favor of either courts composed exclusively of professional judges, or of “mixed courts” in which professional judges and lay assessors collegially decide all questions of fact, law, and sentence. Second, it raises the question whether the jury can act as a catalyst in the reform of Continental European criminal procedure, as it did during the nineteenth century in the wake of the French Revolution. The modern notions of procedural fairness in criminal procedure, which have gained general international recognition in national constitutions and international human rights conventions, have their origins in the following Anglo-American concepts, which developed in the context of an adversarial trial by jury: (l) the presumption of innocence, (2) the privilege against selfincrimination, (3) the equality of arms, (4) the right to a public and oral trial, (5) the accusatory principle, and (6) the judge’s independence from the executive or investigative agency. The classic separation of powers within the adversarial criminal process between a neutral judge, responsible for deciding questions of law and punishment, and a panel of lay persons responsible for questions of fact and guilt, also gave rise to common law rules of evidence. For instance, the separation of powers inspired the regulation of hearsay and relevance, the creation of exclusionary rules addressing excessively prejudicial and illegally gathered evidence, and the adoption of the principle of “free evaluation of the evidence” unfettered by formal rules of evidence. Important devel-

A history of public law in Germany, 1914-1945

Abstract: This history of the discipline of public law in Germany covers three dramatic decades of the twentieth century. It opens with the First World War, analyses the highly creative years of the Weimar Republic, and recounts the decline of German public law that began in 1933 and extended to the downfall of the Third Reich. The author examines the dialectic of scholarship and politics against the background of long-term developments in industrial societies, the rise of the interventionist state, the shift of state law and administrative law theory, and the emergence of new disciplines (tax law, social law, labour law, business administration law). Almost all the issues and questions that preoccupy state law and administrative law theory at the dawn of the twenty-first century were first pondered and debated during this period. Stolleis begins by emphasizing the long farewell to the nineteenth century and then moves on to examine the doctrine of state law and administrative law during the First World War. The impact of the Weimar Constitution and the of the Versailles Treaty on the discipline is discussed. Here the famous 'quarrel of direction' that occurred in the field of state law doctrine (1926-1929) played a central role. But equally important was the development of state law and administrative law theory (in both the Reich and its constituent states), administrative doctrine, and the jurisprudence of international law. Part two of the book is devoted to the impact of National Socialism. The displacement of Jewish scholars, the change of direction in the professional journals, and the shutdown of the Association of State Law Teachers form one aspect of the story. The other aspect is manifested in the erosion of public law and in the growing sense of depression that gripped its practitioners. In the end, it was not only state law that was destroyed by the Nazi experience, but the scholarly discipline that went with it. The author tackles questions about the co-responsibility of scholars for the Holocaust, and the reasons fwhy academic teachers of public law were all but absent in the opposition to the Nazi regime.

Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization

Abstract: According to article 1 echr, states parties are under the obligation to guarantee the convention rights and freedoms to persons ‘within their jurisdiction’. In the famous bankovic decision the european court of human rights interpreted the notion of jurisdiction restrictively, considering it as an essentially territorial concept and its extraterritorial exercise as strictly exceptional. The decision has thus imposed a strong presumption against the applicability of the convention to extraterritorial state conduct. This article explores the subject of extraterritorial application of the echr in view of the court’s recent case law on article 1. It shows that unlike in the case law of the european court, jurisdiction in public international law is a flexible concept, the meaning of which is not necessarily restricted to territoriality. The article demonstrates that in the context of human rights treaties it is possible to devise a more suitable concept of jurisdiction; a concept that would be compatible with the general international law of jurisdiction and at the same time would make it possible to respond to the challenges posed by the globalization of state conduct affecting human rights.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

Abstract: The doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?