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.

The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence

Abstract: I: Introduction. A. Method. B. The International Supervisory Function and the National Margin of Appreciation Doctrine. C. The International Supervisory Function and the National Margin of Appreciation Doctrine: Survey of the Cases. D. Birth of the Margin Doctrine. E. Expansion of the Doctrine beyond Derogation. II: Leading Cases to 1979: Toward Standards. A. Criminal and Civil Due Processes: Neumeister, Stoegmuller, Ringeisen, Wemhoff, Matznetter, Koenig, Delcourt, Luedicke, Balkacem and Koc Cases. B. Personal Freedoms: Belgian Linguistic Case Foundations of Non-Derogation Margin Analysis. C. Personal Freedoms: The `Restricted Environments' Cases of the Early 1970s: Introduction. D. Personal Freedoms: The 1970s `Middle Period'. E. Findings and Conclusions with Regard to the Pre-1979 Case Law. III: Leading Cases since 1979: The Assertion of Standards. A. Introduction. B. Criminal and Civil Procedural Due Process of Law (Arts. 5 and 6). C. Personal Freedoms. D. Discrimination and Equal Protection. E. Findings and Conclusions with regard to the Post-1979 Case Law. IV: Findings and Conclusions. A. Sources of Law and Methods of Interpretation. B. Classifying the Applicability of National Appreciation Doctrine. C. `Rights Hierarchy', `Rights Continuum', and `Private/Public' Rights Theories. D. An Emerging New Category of Cases? E. The Strasbourg Doctrine on Divided Power Issues. F. Consensus, Margin Doctrine, and Evolutive or Dynamic Interpretation of the Convention's Provisions. G. Summation. V: Provisions of the European Human Rights Convention. VI: Table ofCases. VII: Bibliography.

The nature of the common law

Abstract: Much of our law is based on authoritative texts, such as constitutions and statutes The common law, in contrast, is that part of the law that is established by the courts Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations Nevertheless, it has been far from clear what principles courts use--or should use--in establishing common law rules In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best Rather, it can properly employ only those that have a requisite degree of social support More specifically, the common law should seek to satisfy three standards First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict Second, all the rules that make up the body of the law should be consistent with one another Third, the rules adopted in past precedents should be applied consistently over time Often, these three standards point in the same direction The central problems of legal reasoning arise when they do not These problems are resolved by the principles of common law adjudication With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling Throughout the book, the analysis is fully illustrated by leading cases This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society

Law among nations

Abstract: Offering a more accessible alternative to casebooks and historical commentaries, Law Among Nations explains issues of international law by tracing the field's development and stressing key principles, processes, and landmark cases. This comprehensive text eliminates the need for multiple books by combining discussions of theory and state practice with excerpts from landmark cases. The book has been updated in light of the continuing revolution in communication technology, the dense web of linkages between countries that involve individuals and bodies both formal and informal; and covers important and controversial areas such as human rights, the environment, and issues associated with the use of force. Renowned for its rigorous approach and clear explanations, Law Among Nations remains the gold standard for undergraduate introductions to international law. New to the Eleventh Edition Added or expanded coverage of timely issues in international law: Drones and their use in the air and in space Immigration Islamic views of international law Inviolability and the difference between diplomatic immunity and sovereignty, in light of the Benghazi attack Thoroughly rewritten chapters in areas of great change: International criminal law Just war and war crime law New cases, statutes, and treaties on many subjects

Negotiating Asylum : The EU Acquis, Extraterritorial Protection and the Common Market of Deflection

Abstract: How are access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? What tools does international law offer to solve conflicts between them? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues? This work combines the potential of legal formalism with an analytical framework drawing on political theory. It analyses the argumentative strategies used by international lawyers, exploiting the interpretative methodology of international law as well as elaborate discrimination arguments. Taking the axiomatic tension between universalism and particularism as a point of departure, the author conceptualises the efforts to harmonise migration and asylum law in the European Union as the result of two interdependent negotiation loops: one taking place among Member States, and another between protection seekers and their host state. An extensive survey of the EU acquis and its institutional framework leads to the conclusion that both are heavily fragmented. The EU acquis contains not a single binding instruments securing the interests of protection seekers, while instruments enhancing migration control are fraught with legal and practical idiosyncrasies. Burden-sharing remains the pivotal element in the normative dynamics behind the EU acquis, and the various efforts of Member States to launch solidarity schemes are exposed to a critical analysis. After confronting the acquis with protective norms of international law, the author concludes that the deflection of protection seekers by means of visa requirements may constitute a violation of the European Convention of Human Rights, and that the prescriptions of international law oblige Member States to apply the Dublin Convention and the Spanish Protocol in a manner which ultimately empties the law of its main control functions. He also develops an explicatory model reconstructing the case law of the European Court of Human Rights in the field of extraterritorial protection. In the final part, the argumentative interdependencies between universalism and particularism are explored, and the author explains why the European Court of Human Rights must be regarded as the most legitimized forum for the negotiation of asylum in Europe. (Less)

The European Court of Justice and the Judicialization of EU Governance

Abstract: This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 1 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 2 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 3 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 4 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials. Section 5 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking. Published on-line in the Living Reviews in EU Governance Series, Articles in the Living Reviews in EU Governance series provide critical surveys of the development of knowledge in specific fields of research. Living Reviews are peer-reviewed, up-dated on a regular basis, and fully digitalized. This article has been published at: http://europeangovernance.livingreviews.org/Articles/lreg-2010-2/