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.

Gender and refugee status

Abstract: This is the first comprehensive socio-legal study of the interrelation between gender and the law of refugee status. In the past decade, the issue has received increasing attention in academic writing, the media and the courtroom. This book contains an interdisciplinary analysis. The empirical data, collected for this study and not published previously, concerns Dutch asylum practice. The Netherlands is a prominent refugee-receiving country in Europe, yet hardly any English texts address Dutch refugee law. The book also covers foreign case law and academic writing. Therefore, the analysis is relevant for all refugee-receiving countries in the Western world; the empirical data on The Netherlands functions as a case study. The book combines perspectives of post-structuralist feminism and post-colonial studies. Refugee women are constructed as a double other. This intersectionality is related to the construction of the Third World as feminine (passive, in need of active outside intervention etc., etc.). The book provides a comprehensive overview of academic writing and of case law on the subject. On this basis of theoretical perspectives that were almost ignored until now, it develops an innovative critique of refugee law discourse and outlines its possible consequences for legal doctrine.

Universality or Diversity of Human Rights? † Strasbourg in the Age of Subsidiarity

Abstract: Over the past few years, the European Court of Human Rights has been criticised in several extrajudicial speeches in the United Kingdom. In this article the author, a judge of the Strasbourg Court, analyses some of this criticism, focussing especially on Lord Hoffmann’s views in his 2009 farewell lecture, The Universality of Human Rights ,a s well as discussing some more recent speeches by senior British judges. The author argues that, contrary to some of this criticism, the Strasbourg Court has gradually developed its approach in relation to the principle of subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights. In this way, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities of their Convention obligations. In this connection, the article then discusses briefly the case law of the Strasbourg Court on the exhaustion of domestic remedies in relation to declarations of incompatibility under the Human Rights Act 1998 (UK).

Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830

Abstract: Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830. By Daniel J. Hulsebosch. (Chapel Hill, NC: University of North Carolina Press, 2005. Pp. 494. Cloth, $45.00.)This book is part of an older story written anew. Charles Beard, Carl Becker, and Merrill Jensen would find little to fault. Without mentioning the Progressive historians, Hulsebosch argues that American constitutional and legal history can be understood only within the context of intracolonial contests that began early in each colony's history and continued through the mid-nineteenth century. Using New York as a case study, Hulsebosch examines four stages of development: the colonial years to 1760, the Revolutionary generation (1760 to 1786), the Constitutional era (1787 to the 1790s), and the antebellum period (1800 to 1840).As a foundation, Hulsebosch asserts that the multifaceted British imperial law had tremendous influence on New York law, and that New York, positioned at the center of Britain's American colonial empire, played a critical role in the other colonies in interpreting their constitutions and developing their systems of law.Three groups vied with one another in shaping eighteenth-century colonial New York law. A powerful core of imperial agents, such as Cadwalader Colden and William Johnson, acknowledged and advocated the dominance of the British constitution and law and that any liberties enjoyed by colonists (even those claimed under the common law) were held by the grace of the crown and could be "repossessed at will" (93). A native-born provincial elite (called by Hulsebosch the "creole elite"), such as Lewis Morris and William Smith, Jr., argued that colonists brought with them and retained all the rights of Englishmen as embodied in the common law, the great documents of state, and the statutory law. Furthermore, as the years passed, the colonies' experience with self government became the "root of their protest" (94). Although the colonies experienced and relished a federal relationship within the British Empire, the creole elite never developed a theory of divided sovereignty. Hulsebosch's last group of frontier settlers and oceangoing sailors lived on the colony's periphery, often defied local authorities, and espoused the common law and a constitutionalism of migration.Hulsebosch believes that the contests among these three groups "over the relevance and content of the common law, jurisdiction, and the personnel of the legal system (whether judges are appointed to serve for good behavior or at the will of the governor) divided the inhabitants of New York into slowly cohering political groups . . . more than the tension between the abstractions of 'London' and 'the colonies,' help explain the indirect path in New York that ended in rebellion" (134). While not denying the imperial conflict that led to independence, Hulsebosch agrees with the Progressive historians "that the real battle [of the Revolution] was not transatlantic; it went on within the province" (142).Hulsebosch then explores the relationships between the states and the Confederation government, among the states themselves, and within each state. Abandoning Parliament's Declaratory Act's (1766) principle of imperial dominance, New York's Constitution of 1777 proclaimed that all authority emanates from the people.Hulsebosch describes New York's Constitution and makes comparisons with other state constitutions, occasionally with mistakes of varying magnitude. More disappointing is Hulsebosch's failure to mention New York's statutory bill of rights passed in January 1787. Milton Klein and John Phillip Reid have alluded to this act, and I have tried to explain its enactment, but Hulsebosch seems to be unaware of its existence. He also seems unaware of the attempt by the states (particularly New York) to have the common-law judicial rights embodied in state constitutions and bills of rights incorporated into the Confederation government when the states ratified the Impost of 1783. …

Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights

Abstract: Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways. Why and how do international courts justify their rulings with citations to their own case law? Formally, the legal effect of an international court ruling is limited to the specific dispute it resolves. Yet, international courts frequently treat their past decisions as if they set precedents for new ones. A straightforward explanation for this divergence between formal rule and judicial practice is that relying on past decisions improves efficiency in the internal workings of the court. While this is undoubtedly part of the story, we argue that international courts also strategically use case citations to enhance the degree to which their decisions are perceived as legitimate by external audiences. International courts depend on domestic actors for compliance. While political actors are unlikely to be persuaded by legal justifications, domestic judges may well be more inclined to implement decisions that demonstrate legal consistency across time and place. We suggest that an international court adjusts the choice of case citations to the demands of domestic legal audiences and exerts more effort on embedding decisions in case law when the expected impact of persuading these audiences is highest. Importantly, this implies that an international court maximizes its legitimacy by avoiding fragmentation in its case law along lines of legal culture or other country-specific factors. This article examines whether case citation patterns in the most prolific international court, the European Court of Human Rights (ECtHR), fit these theoretical expectations.

The birth of the English common law

Abstract: This book provides a challenging interpretation of the emergence of the common law in Anglo-Norman England, against the background of the general development of legal institutions in Europe. In a detailed discussion of the emergence of the central courts and the common law they administered, the author traces the rise of the writ system and the growth of the jury system in twelfth-century England. Professor van Caenegem attempts to explain why English law is so different from that on the Continent and why this divergence began in the twelfth century, arguing that chance and chronological accident played the major part and led to the paradox of a feudal law of continental origin becoming one of the most typical manifestations of English life and thought. First published in 1973, The Birth of the English Common Law has come to enjoy classical status, and in a preface Professor van Caenegem discusses some recent developments in the study of English law under the Norman and earliest Angevin kings.