Topic
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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TL;DR: The authors examines the expansion of several major families of law as a concomitant of military conquest, colonial aggrandizement, and/or economic penetration and some of the long-term consequences of these historical patterns.
Abstract: This article examines the expansion of several major families of law as a concomitant of military conquest, colonial aggrandizement, and/or economic penetration-the attributes of legal imperialism-and some of the long-term consequences of these historical patterns. The families investigated are the Anglo-American common law, Romanistic, Nordic, Germanic, Socialistic, and Islamic. This investigation initiates a comprehensive examination of the enduring influence of legal systems introduced by powerful nations into nations or regions subjected to colonial control or strong economic penetration during the past five centuries. Central to this investigation is a concept which incorporates key unifying elements of law in societal relations, notably families of law. Most modern commen- tators such as David and Brierly refer to the widespread utilization of the two major European families of law as part of a "received" tradition-a designation which suggests willing acceptance of an external legal culture. The historic record of colonial expansion contradicts such benign explanations despite the tendency of most conventional law commentators to treat families of law such as the British common law or continental civil law as objective conflict resolution systems rather than manifestations of the cultural imperialism of powerful colonial nations. The empirical foundation for a detailed time series analysis of the expansion of particular'families of law as a concomitant of military conquest, colonial aggran- dizement, and/or economic penetration is provided for the nineteenth century by the extensive contributions of James Bryce and others, for the twentieth century between World War I and World War II by John Henry Wigmore and others, and for the post-World War II era by Konrad Zweigert and Hein Kotz. The families of law which will be examined chronologically are the three which are considered the most influential in the late twentieth century, and several which either because of their persistence, or previous influence are considered viable families of law currently.
41 citations
Book•
23 May 1996
TL;DR: The authors argues that a satisfactory distinction between public and private law depends on a particular legal and political context, a context which was evident in late-nineteenth-century France and is absent in twentieth-century England.
Abstract: The development of an autonomous English public law has been accompanied by persistent problems-a lack of systematic principles, dissatisfaction with judicial procedures, and uncertainty about the judicial role. It has provoked an ongoing debate on the very desirability of the distinction between public and private law. In this debate, an historical and comparative perspective has been lacking. A Continental Distinction in the Common Law introduces such a perspective. It compares the recent emergence of a significant English distinction with the entranchment of the traditional French distinction. It explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions, differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public-law cases. The author argues that a satisfactory distinction between public and private law depends on a particular legal and political context, a context which was evident in late-nineteenth-century France and is absent in twentieth-century England. He concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.
41 citations
Book•
25 Feb 2016
TL;DR: In Sexual States as discussed by the authors, Jyoti Puri tracks the efforts to decriminalize homosexuality in India to show how the regulation of sexuality is fundamentally tied to the creation and enduring existence of the state.
Abstract: In Sexual States Jyoti Puri tracks the efforts to decriminalize homosexuality in India to show how the regulation of sexuality is fundamentally tied to the creation and enduring existence of the state. Since 2001 activists have attempted to rewrite Section 377 of the Indian Penal Code, which in addition to outlawing homosexual behavior is often used to prosecute a range of activities and groups that are considered perverse. Having interviewed activists and NGO workers throughout five metropolitan centers, investigated crime statistics and case law, visited various state institutions, and met with the police, Puri found that Section 377 is but one element of how homosexuality is regulated in India. This statute works alongside the large and complex system of laws, practices, policies, and discourses intended to mitigate sexuality's threat to the social order while upholding the state as inevitable, legitimate, and indispensable. By highlighting the various means through which the regulation of sexuality constitutes India's heterogeneous and fragmented "sexual state," Puri provides a conceptual framework to understand the links between sexuality and the state more broadly.
41 citations
Posted Content•
TL;DR: The European Court of Justice (ECJ) is extending its case law on the WTO, denying direct effect to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS) as mentioned in this paper.
Abstract: Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.
41 citations
TL;DR: The interdisciplinary conjunction between law, medicine and ethics has been a notable development over the last twenty or thirty years, particularly in the UK and common law countries such as Australia, New Zealand and Canada as mentioned in this paper.
Abstract: The interdisciplinary conjunction between law, medicine and ethics has been a notable development over the last twenty or thirty years, particularly in the UK and common law countries such as Australia, New Zealand and Canada. Many law schools in Australia now have flourishing centres and institutes where law and medicine and ethics are brought into dialogue with each other and there are also a number of statutory bodies serving the same purpose. Monash University in Melbourne, for example, has been the home of the Centre for Human Bioethics under the guidance of Professor Peter …
41 citations