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.

International Law and the Use of Force by National Liberation Movements

Abstract: Part 1 The law: the concept of law - definitions and subjects, sources of international law, the UN and the development of law the authority to use force in international law - the concept of legitimacy, the authority to use force in world politics, intervention in internal conflicts humanitarian protection in international law - humanity and warfare, humanitarian protection when belligerency is recognized, humanitarian protection without recognition of belligerency, national liberation movements. Part 2 Self-determination: self determination in international law - Wilson and the League, the UN charter, post-war acceleration and metamorphosis, self-determination in positive law, self-determination as a right in law, the concept of "self". Part 3 Right authority: the authority of use force by national liberation movements - United Nations resolutions, the practice of states, the 1977 protocols, the legal arguments national liberation movements as representative authorities - international recognition. Part 4 Protection of victims: the law of armed conflict in wars of national liberation - United Nations resolutions, recent trends in state practice, the 1977 protocols additional to the Geneva conventions the prospects for application.

The Rise of Dispersed Ownership: The Role of Law in the Separation of Ownership and Control

Abstract: Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholders, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay, and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies". Nonetheless, this article finds that significant movement in the direction of dispersed ownership has occurred and is accelerating across Europe. But can this trend persist in the absence of strong legal protections for minority shareholders and in the presence of high private benefits of control? To understand how dispersed ownership might both arise and persist in the absence of the supposed legal and political preconditions, this article reconsiders the appearance of dispersed ownership in the late 19th and early 20th Century in the U.S. and the U.K. and contrasts their experience with those of France and Germany over the same period. During this era, the private benefits of control were high, and minority legal protections in the U.S. were notoriously lacking, as the famous Robber Barons of the age bribed judges and legislators and effectively employed regulatory arbitrage to escape even minimal anti-fraud regulation. Nonetheless, strong self-regulatory institutions (most notably, the New York Stock Exchange) and private bonding mechanisms by which leading underwriters pledged their reputational capital by placing directors on the board of sponsored firms enabled the equity market to expand and dispersed ownership to arise. In contrast, in the U.K., the London Stock Exchange for a variety of path-dependent reasons played a far more passive role and did not become an effective self-regulator until much later in the 20th Century. Yet, dispersed ownership also arose, although at a slower pace. The lesser role for private self-regulation in the U.K. may have been the consequence of its lesser need for self- regulation as a functional substitute for formal law, given both earlier legislation in the U.K. and lesser exposure to judicial corruption and regulatory arbitrage. In contrast to the New York and London Exchanges, the Paris Bourse over this same period made little, if any, effort to develop a self-regulatory structure or to upgrade listing or disclosure standards. Why not? The answer seems closely associated with the fact that it operated as a state-administered monopoly whose stockbrokers were formally considered civil servants and who were legally denied the ability to trade as principals for their own account. Facing no competition and composed of members having little incentive to promote or enhance its reputational capital, the Paris Bourse did not innovate and fell behind the London Stock Exchange. The intrusive role of state regulation, which discouraged private self-regulatory initiatives, appears to have a factor in its competitive decline. In Germany, the state strongly supported the growth of large private banks and enacted a punitive tax on securities transactions. Because the German central bank offered very liberal rediscounting terms to the principal private banks, they were able to satisfy the capital needs of German industry without resort to the equity market. In this respect, concentrated ownership seems less to have evolved naturally than to have been subsidized by the state. Prospectively, this article argues that "functional convergence" will dominate "formal convergence" and that the principal mechanism of functional convergence may be private self- regulation. However, rather than reject the "law matters" hypothesis, this article suggests that one of the principal advantages of common law legal systems is their decentralized character, which encourages self-regulatory initiatives, whereas in civil law systems the state may monopolize all law-making initiatives. Further, this article proposes that legal reforms, while important, are likely to follow, rather than precede, market changes - as happened in both the U.S. and the U.K. Once however a constituency for liquid and transparent securities market is thus created, it will predictably seek and secure legislation that fills in the enforcement gap that self-regulation leaves. Both in the U.S., the U.K. and Europe today, the growth of securities markets has been largely divorced from politics.

Blackstone's tower: The English law school

Abstract: Law in Culture and Society. Law in the Universities: The Historical Context. What are Law Schools for? Law School Culture: A Visit to Rutland. The Law Library. Legal Scholorship and the Roles of the Jurist. The Quest for a Core. Appendix: English Law Teachers as Academics: A Preliminary Analysis.

Bringing Democracy into International Law

Abstract: The word “democracy” does not appear in the Charter of the United Nations, nor was it mentioned in the Covenant of the League of Nations. None of the standard textbooks on international law includes chapters on democracy. The International Court of Justice has not based any of its decisions on the legal application of democratic principles. If one were to look no further than these pillars of international law, one might conclude that democracy is not relevant. Yet the Vienna Declaration and Programme of Action adopted by the 1993 World Conference on Human Rights asserted in paragraph 8 of Section I, “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. . . . The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.” Though a nonbinding instrument, this Declaration represents a clear indication of the direction of international opinion and the development of international law. Twice in the twentieth century the international community toyed with the notion of making democracy a norm of international law. The first time was when Woodrow Wilson described America’s entry into World War I as a crusade to make the world “safe for democracy.” Victors, however, earn the right to redraft the rules. The vindictive Treaty of Versailles divided the spoils and hobbled the vanquished, but it stopped Roland Rich is director of the Centre for Democratic Institutions at the Australian National University (ANU), Australia’s government-funded democracy-promotion institute. He holds Arts and Law degrees from the University of Sydney and the degree of Master of International Law from ANU. He served for more than 20 years as an Australian Foreign Service officer and held the position of legal adviser to the Australian Department of Foreign Affairs and Trade. He has held several diplomatic posts, including ambassador to Laos.

Common Law, Common Ground, and Jefferson's Principle

Abstract: Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that written constitutions (or, in many instances, statutes) are binding. Most answers to Jefferson's challenge rely, in one way or another, on a claim that being an American means owing an obligation of some kind to previous generations. These accounts should not be disparaged, but in a large and heterogeneous nation the obligation to adhere to decisions made decades or centuries ago should rest on something less contested. Our written Constitution performs two functions that justify adherence to it, without relying on a contested conception of American citizenship. First, the text, and the judgments of those who wrote and ratified it, are a source of precedents, roughly on a par with certain judicial decisions. Second, the text provides what game theory calls a "focal point": it establishes common ground on questions (such as the length of a President's term) that need to be settled one way or another. There are no other justifications, beyond these two, for requiring adherence to the text of a document adopted long ago. But this account helps explain current practices that might otherwise seem unjustifiable: an emphasis on the words of the text often without regard to the intentions of the drafters, as evidenced, for example, in the debate over the incorporation of the Bill of Rights; the highly selective use of historical sources (what is often called "law office history"); the fact that the text of the Constitution matters most for issues that are the least important; and popular attitudes about constitutional amendment.