Welcome to Loot.co.za!
Sign in / Register |Wishlists & Gift Vouchers |Help | Advanced search
|
Your cart is empty |
|||
Books > Law > Jurisprudence & general issues > Foundations of law > Common law
In the common law world, Albert Venn Dicey (1835-1922) is known as the high priest of orthodox constitutional theory, as an ideological and nationalistic positivist. In his analytical coldness, his celebration of sovereign power, and his incessant drive to organize and codify legal rules separate from moral values or political realities, Dicey is an uncanny figure. This book challenges this received view of Dicey. Through a re-examination of his life and his 1885 book Law of the Constitution, the high priest Dicey is defrocked and a more human Dicey steps forward to offer alternative ways of reading his canonical text, who struggled to appreciate law as a form of reasoned discourse that integrates values of legality and authority through methods of ordinary legal interpretation. The result is a unique common law constitutional discourse through which assertions of sovereign power are conditioned by moral aspirations associated with the rule of law.
Speaking to today's flourishing conversations on both law, morality, and religion, and the religious foundations of law, politics, and society, Common Law and Natural Law in America is an ambitious four-hundred-year narrative and fresh re-assessment of the varied American interactions of 'common law', the stuff of courtrooms, and 'natural law', a law built on human reason, nature, and the mind or will of God. It offers a counter-narrative to the dominant story of common law and natural law by drawing widely from theological and philosophical accounts of natural law, as well as primary and secondary work in legal and intellectual history. With consequences for today's natural-law proponents and critics alike, it explores the thought of the Puritans, Revolutionary Americans, and seminal legal figures including William Blackstone, Joseph Story, Christopher Columbus Langdell, Oliver Wendell Holmes, and the legal realists.
This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes's literary style mimics and enacts two characteristics of Ralph Waldo Emerson's thought: "superfluity" and the "poetics of transition," concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes's dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the "canon" of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. Dean R. Knight explores the main shapes and forms employed in judicial review in England, Canada, Australia and New Zealand over the last fifty years. Four schemata are drawn from the case law and taken back to conceptual foundations, exposing their commonality and differences, and each approach is evaluated. This detailed methodology provides a sound basis for decisions and debates about how variability should be brought to individual cases and will be of great value to legal scholars, judges and practitioners interested in judicial review.
Street-Level Sovereignty: The Intersection of Space and Law is a collection of scholarship that considers the experience of law that is subject to social interpretation for its meaning and importance within the constitutive legal framework of race, deviance, property, and the communal investiture in health and happiness. This book examines the intersection of spatiality and law, through the construction of place, and how law is materially framed.
The recognition and enforcement of legitimate expectations by courts has been a striking feature of English law since R v North and East Devon Health Authority; ex parte Coughlan [2001] 3 QB 213. Although the substantive form of legitimate expectation adopted in Coughlan was quickly accepted by English courts and received a generally favourable response from public law scholars, the doctrine of that case has largely been rejected in other common law jurisdictions. The central principles of Coughlan have been rejected by courts in common law jurisdictions outside the UK for a range of reasons, such as incompatibility with local constitutional doctrine, or because they mark an undesirable drift towards merits review. The sceptical and critical reception to Coughlan outside England is a striking contrast to the reception the case received within the UK. This book provides a detailed scholarly analysis of these issues and considers the doctrine of legitimate expectations both in England and elsewhere in the common law world.
'Great cases' are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.
This book studies the U.S. Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's modern approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, an approach that often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules and treats these principles and rules as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, beginning with established legal standards but also including the insights derived from deductive and inductive reasoning, the lessons learned from history and custom and ending with an examination of the social and economic consequences of the decision. Under this model, the considerations taken to reach a specific result should be articulated through a process that considers various hypotheses, arguments, confutations, and confirmations, and they should be shared with the public."
A woman both in the eye of law and the society is not merely a person either in the gender or the existence. She has an inherent personality since birth called 'womanhood'. Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honor and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world. India needs to fast justify its reputation as a leading Civilization of the World and this book will contribute to this journey.
This is the story of how disputes of all kinds were managed in England between AD 1154 and the first signs of the Common Law, and 1558 when a new period started in the development of the English legal system. Primary sources, including private papers like the "Paston Letters", show how disputes were managed in practice. Mediation and arbitration were then natural and widespread. Their aim was to produce peace through compromise. Parties turned to the community for help: hundred and shire, magnates, city and borough guilds, university, the Church and the Jews. The king's Council and even Parliament offered mediation and arbitration. The scope included disputes not arbitrable today ownership of freehold land, status, even rape, murder and riot. Arbitration centres in London, York and Bristol offered services to all comers. Foreigners brought disputes with no connection to England. In 1484 a labourer, defended his interests in an arbitration arranged by the York authorities. The Mayor of Bristol kept an office open every day to arrange arbitrations. The Privy Council sat on a Sunday morning in February 1549 for that purpose. And women were parties almost as often as men - and occasionally mediators and arbitrators.
William E. Nelson's first volume of the four-volume The Common Law of Colonial America (2008) established a new benchmark for study of colonial era legal history. Drawing from both a rich archival base and existing scholarship on the topic, the first volume demonstrated how the legal systems of Britain's thirteen North American colonies-each of which had unique economies, political structures, and religious institutions -slowly converged into a common law order that differed substantially from English common law. The first volume focused on how the legal systems of the Chesapeake colonies-Virginia and Maryland-contrasted with those of the New England colonies and traced these dissimilarities from the initial settlement of America until approximately 1660. In this new volume, Nelson brings the discussion forward, covering the years from 1660, which saw the Restoration of the British monarchy, to 1730. In particular, he analyzes the impact that an increasingly powerful British government had on the evolution of the common law in the New World. As the reach of the Crown extended, Britain imposed far more restrictions than before on the new colonies it had chartered in the Carolinas and the middle Atlantic region. The government's intent was to ensure that colonies' laws would align more tightly with British law. Nelson examines how the newfound coherence in British colonial policy led these new colonies to develop common law systems that corresponded more closely with one another, eliminating much of the variation that socio-economic differences had created in the earliest colonies. As this volume reveals, these trends in governance ultimately resulted in a tension between top-down pressures from Britain for a more uniform system of laws and bottom-up pressures from colonists to develop their own common law norms and preserve their own distinctive societies. Authoritative and deeply researched, the volumes in The Common Law of Colonial America will become the foundational resource for anyone interested the history of American law before the Revolution.
What does it mean when civil lawyers and common lawyers think
differently? In Charting the Divide between Common and Civil Law,
Thomas Lundmark provides a comprehensive introduction to the uses,
purposes, and approaches to studying civil and common law in a
comparative legal framework. Superbly organized and exhaustively
written, this volume covers the jurisdictions of Germany, Sweden,
England and Wales, and the United States, and includes a discussion
of each country's legal issues, structure, and their general rules.
Professor Lundmark also explores the discipline of comparative
legal studies, rectifying many of the misconceptions and prejudices
that cloud our understanding of the divide between the common law
and civil law traditions.
Should judges in United States courts be permitted to cite foreign laws in their rulings? In this book Jeremy Waldron explores some ideas in jurisprudence and legal theory that could underlie the Supreme Court's occasional recourse to foreign law, especially in constitutional cases. He argues that every society is governed not only by its own laws but partly also by laws common to all mankind (ius gentium). But he takes the unique step of arguing that this common law is not natural law but a grounded consensus among all nations. The idea of such a consensus will become increasingly important in jurisprudence and public affairs as the world becomes more globalized.
Hong Kong is one of the very few places in the world where the
common law can be practiced in a language other than English.
Introduced into the courtroom over a decade ago, Cantonese has
significantly altered the everyday working of the common law in
China's most Westernized city. In "The Common Law in Two Voices,"
Ng explores how English and Cantonese respectively reinforce and
undermine the practice of legal formalism.
Landmark Cases in the Law of Tort contains thirteen original essays on leading tort cases, ranging from the early nineteenth century to the present day. It is the third volume in a series of collected essays on landmark cases (the previous two volumes having dealt with restitution and contract). The cases examined raise a broad range of important issues across the law of tort, including such diverse areas as acts of state and public nuisance, as well as central questions relating to the tort of negligence. Several of the essays place cases in their historical context in ways that change our understanding of the case's significance. Sometimes the focus is on drawing out previously neglected aspects of cases which have been - undeservedly - assigned minor importance. Other essays explore the judicial methodologies and techniques that worked to shape leading principles of tort law. So much of tort law turns on cases, and there are so many cases, that all but the most recent decisions have a tendency to become reduced to terse propositions of law, so as to keep the subject manageable. This collection shows how important it is, despite the constant temptation to compression, not to lose sight of the contexts and nuances which qualify and illuminate so many leading authorities.
Much more than an historical examination of liability, criminal law, torts, bail, possession and ownership, and contracts, "The Common Law" articulates the ideas and judicial theory of one of the greatest justices of the Supreme Court. G. Edward White reminds us why the book remains essential reading not only for law students but also for anyone interested in American history. The text published is, with occasional corrections of typographical errors, identical with that found in the first and all subsequent printings by Little, Brown.
The American system of law has experienced a quiet revolution that has gone largely unnoticed by political scientists and legal scholars. The change that has occurred- the abandonment of the common law foundation on which the American judicial system was built-has important consequences for democratic politics in the United States and abroad. Dismantling American Common Law: Liberty and Justice in Our Transformed Courts tracks the development of the American common law through historical and quantitative analysis and a philosophical inquiry of the founding. Author Kyle Scott seeks to reclaim this lost tradition of common law, which was vital as a legitimizing force and consensus-building mechanism at the American founding and will grow in importance for newly democratizing nations around the world.
In a series of fifteen vivid essays, this book discusses the
contributions of great common-law jurists and singular
documents--namely the Magna Carta and the Laws and Liberties of
Massachusetts--that have shaped common law, from its origins in
twelfth-century England to its arrival in the American colonies.
In the two related works in this volume, Bentham offers a detailed
critique of William Blackstone's Commentaries on the Laws of
England (1765-9). In "Comment on the Commentaries," on which
Bentham began work in 1774, he exposes the fallacies which he
claims to have detected in Blackstone, and criticizes the theory of
the Common Law. He goes on to provide important reflections on the
nature of law, and more particularly on the nature of customary and
of statute law, and on judicial interpretation.
William E. Nelson here proposes a new beginning in the study of
colonial legal history. Examining all archival legal material for
the period 1607-1776 and synthesizing existing scholarship in a
four-volume series, The Common Law in Colonial America shows how
the legal systems of Britain's thirteen North American
colonies--initially established in response to divergent political,
economic, and religious initiatives--slowly converged into a common
American legal order that differed substantially from English
common law. |
You may like...
The Limits of Biological Treatments for…
Seymour Fisher, Roger P. Greenberg
Paperback
R1,502
Discovery Miles 15 020
English Corporate Insolvency Law - A…
Eugenio Vaccari, Emilie Ghio
Hardcover
R3,522
Discovery Miles 35 220
|