This work was written 1989 and published for the first time in 2002. The author's intention is to inform even-handedly, national and international debates about the misunderstandings surrounding the Sharia and common legal systems in Nigeria. Balewa broadly discusses Western and Islamic philosophical backgrounds of law, relationships between law, politics and religion in society, and concepts of secularism and secularity. He traces the history and schools of Sharia law, and the sources of common law in Nigeria, and its comparative religious and colonial foundations. He further appraises two views of the controversy: namely, whether Sharia law, as a fully-fledged legal system, should be reflected in the Nigerian constitution - or not, given its contentious religious content; and he states the case against Sharia. His conclusion is that in view of the status quo, and the multi-ethnic, mulit-religious nature of Nigerian society, there is a need for understanding of the truths of both systems; and to find appropriate means of ensuring their equality and peaceful co-existence.

This is a broad history of the western European legal tradition. From the modern age the author looks back to a time when Europe had a common law that transcended national and legal boundaries. This common law, which Bellomo calls the ""ius commune"", had developed in the 12th century from the fusion of Roman, canon and feudal law. Existing within the framework of the ""ius commune"" were the local laws or ""iura propria"" - the myriad laws of everyday life, the laws particular to the various kingdoms, principalities, cities, guilds and secular and ecclesiastical corporations. Bellomo illustrates how for centuries the ""ius commune"" permeated every aspect of the ""iura propria"", marking European law indelibly with its stamp. Because the ""iura propria"" emerged from the unifying norms and principles of the ""ius commune"", one can not properly understand local European systems of law without first understanding the ""ius commune"" and its influence on the legal concepts, institutions, procedures, documents, and doctrines of the ""iura propria"". Linking his history to modern day concerns, Bellomo argues that the codification that occurred in European countries during the 18th and 19th centuries has introduced ambiguity, rigidity and uncertainty into legal systems. A new common law for the whole of Europe, he asserts, would provide a much better vehicle for legal change and development in a time when the economic barriers between European nations are crumbling. Bellomo then describes the beginnings of the ""ius commune"" in the schools of the 12th century, discusses the development of Italian, French and German ""iura propria"", and incorporates into the text sketches of the great jurists who gave common law its intellectual vigour. He concludes with an account of the humanist jurists of the 15th, 16th and early 17th centuries.

The forms of action are a part of the structure upon which rests the whole common law of England and, though we may have buried them, they still, as Maitland says, rule us from their graves. The following extract is taken from the editors' preface: 'The evasion of the burden of archaic procedure and of such barbaric tests of truth as battle, ordeal and wager of law, by the development of new forms and new law out of criminal or quasi criminal procedure and the inquest of neighbour-witnesses has never been described with this truth and clearness. He makes plain a great chapter of legal history which the learners and even the lawyers of today have almost abandoned in despair. The text of the chief writs is given after the lectures ...'

This volume contributes to the codification debate by bringing together research articles which compare and contrast the experience of countries which have a criminal code with those operating a case law system. The articles consider the criticisms that are often made of criminal code systems such as: the implicit restrictions on judicial discretion; the tendency towards inflexibility; the discrepancy that can develop between the theory and the development of the law in practice; and the potential difficulty of a criminal code fitting into a country's domestic socio-legal culture. The advantages of the case law system are also considered such as reliance on the judiciary for the development of the nation's criminal law as well as the ability to legislate on the problems of the day by enacting topical laws for distinct subjects. Whereas wholesale codification is a much more accepted phenomenon in the continental law traditions, simplistic transplants from one legal tradition can result in systemic frictions and other anomalies which may offend domestic culture. This collection is an invaluable reference tool which supports the discussion over codification and promotes better understanding across the common law/civil law divide.

This book presents a clear, carefully-analysed picture of the operation of equity today, across the common law world. Rather than revisit the abstract debate as to whether or not equity has 'fused' with the common law, it focuses on specific equitable principles and doctrines. Expert contributors step back and take a wider view of those doctrines, examining how they can best be understood today, and how they might develop in the future. This will prove invaluable to practitioners and courts (at first instance as well as appellate level), allowing them to navigate the constantly-growing mass of case law. Drawing on expertise from across the worlds of academia, practice and the bench, this seminal collection provides the most illuminating picture available of how equity operates.

The new Liberty Fund edition of "The Selected Writings of Sir Edward Coke" includes selections from the four volumes of the "Institutes" and cases from the "Reports," and several of Coke's speeches in Parliament. Taken together, these writings delineate the origin and nature of the modern common law and indicate the profound interrelationship in the English tradition of custom, common law, authority (of both Crown and Commons), and individual liberty. Coke's great law books and speeches are well represented on Magna Carta, citizenship, habeas corpus, freedom from wrongful search and arrest, the origins of law, judicial review, administrative law, judging, criminal law, the moral obligations of officials, the powers of King, Parliament, church, and the law, property and rights, and the profession and study of law. "The Selected Writings of Sir Edward Coke" is the first anthology of his works ever published.Steve Sheppard is a professor at the School of Law, University of Arkansas. He writes on constitutional history and theory, legal history, property law, and general jurisprudence, and he has edited "The History of Legal Education" (Salem Press, 1998).Click here for a pdf of the "Selected Writings of Sir Edward Coke" brochure

Sir Rabinder Singh has been one of the leading lights in the recent development of the common law, most notably in the field of human rights and the law of privacy. Here, for the first time, he reflects on the defining themes of his career as advocate and judge. Combining his trademark originality of thought and impeccable scholarship, he selects previously published and unpublished writings to track the evolution of his approach to the common law. A substantial introduction gives context to the book, while opening introductions to each piece reflect on their relevance to contemporary legal thought. The essays explore themes as diverse as judicial review, equality, and privacy and personal autonomy. Insightful, erudite, and thought-provoking, this collection is a must read for all those interested in the law and its role in society.

Duels and bloodfeuds have long been regarded as essentially Continental phenomena, counter to the staid and orderly British ways of settling differences. In this surprising work of social and legal history, Paul R. Hyams reveals a post-Conquest England not all that different from the realms across the Channel. Drawing on a wide range of texts and the long history of argument about these texts, Hyams shatters the myth of English exceptionalism, the notion that while feud and vengeance prevailed in the lands of the Franks, England had advanced beyond such anarchic barbarism by the time of the Conquest and forged a centralized political and legal system. This book provides support for the notion that feud and vengeance flourished in England long beyond the Conquest, and that this fact obliges us to reconsider the genealogies of both common law and the English monarchy.Moving back and forth between a broad overview of 300 years of legal history and the details of specific disputes, Hyams attends to the demands of individuals who believed that they had been aggrieved and sought remedy. He shows how individuals perceived particular acts of violence and responded to them. These reactions, in turn, sparked central efforts to manage disputes and thereby establish law and order. Respectable litigation, however, never eclipsed the danger of direct action, often violent and physical.

Looking at key questions of how companies are held accountable under private law, this book presents a succinct and accessible framework for analysing and answering corporate attribution problems in private law. Corporate attribution is the process by which the acts and states of mind of human individuals are treated as those of a company to establish the company’s rights, duties, and liabilities. But when and why are acts and states of mind attributed in private law? Drawing on a wide range of material from across the disparate areas of company law, agency law, and the laws of contract, tort, unjust enrichment, and equitable obligations, this book’s central argument is that attribution turns on the allocation and delegation of the company’s own powers to act. This approach allows for a much greater and clearer understanding of attribution. A further benefit is that it shows attribution to be much more united and coherent than it is commonly thought to be. Looking at corporate attribution across the broad expanse of the common law, this book will be of interest to lawyers across the common law world, including the United Kingdom, Australia, Canada, and Singapore.

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.

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.

Law is a strange beast. It is often thought of as moral, yet morality and law do not often coincide. It is supposed to encourage individuals to act in accordance with societal wishes, such as the protection of intellectual property encourages someone to invent new products and thereby increase the level of technology, productivity, and economic activity in our economy. Yet law often provides perverse incentives that cause individuals, or even the State, to act in discordant, and therefore inefficient, ways. More than anything else, law in its various forms creates the working rules of an economy, for better or for worse. The popular refrain 'there ought to be a law' is a desire to alter future outcomes when current or past outcomes seem to the public to be inconsistent with their notions of fairness and justice. Regardless, many, if not most, laws applied to our economic system create severe inefficiencies such as minimum wage legislation and rent control laws; these actually serve to deny individuals work and shelter in a haphazard and capricious manner. Law also dictates property rights, yet eminent domain lets the State take it away with seemingly arbitrary compensation to the owner. It is for this reason that workers, employers, managers and others have a stake in understanding the interplay between law and economics and how to evaluate laws to determine whether and how their business property and equity may be impacted by them. It is also incumbent upon individuals to understand the process of rulemaking as a mechanism that can be designed to reduce the transactions costs that cause us to resort to the legal system to resolve disputes. One unique aspect of this book is that it is written with both economists and non-economists in mind. Another difference is that this text does not concern itself with criminal law, which is left to a separate book in the Business Expert Press economics collection. A final difference is that this text discusses the legal organization of businesses as well as tax law from an economics perspective, two items that are not formally treated in other economics of law textbooks.

The Selected Writings of Sir Edward Coke contains the most important works of the great English jurist-politician who set out to codify English common law. In his Reports, which are reports of court proceedings, and his Institutes, which state the law, Coke set down a view of English law that has had a powerful influence on lawyers, judges, and politicians through the present day. Liberty Fund's Selected Writings of Sir Edward Coke includes not only selections from the four volumes of the Institutes and cases from the Reports, but also several of Coke's speeches in Parliament, Coke's opinions from the bench, and opinions of Coke as recorded by others from official cases and court records. Taken together, these writings delineate the origin and nature of English law and indicate the profound interrelationship in the English tradition of custom, common law, authority (of both Crown and Commons), and individual liberty.

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.

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.

Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.
Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege--the right to remain silent--is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality.
This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law.

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.

Im Rahmen der Foederalismusreform 2006 fallt ein Reformgegenstand aufgrund seiner Neuartigkeit besonders ins Auge - die in Art. 72 Abs.3 GG statuierte Abweichungsgesetz-gebung. Mit dem in ihr angelegten Nebeneinander von Rechtssetzungen des Bundes und der Lander innerhalb einer Regelungsmaterie strapaziert sie die Funktionsweise des kooperativen Foederalismus ebenso wie den bundesstaatlichen Gedanken in seiner Gesamtheit. Ausgehend hiervon soll die vorliegende Publikation einen Bogen zwischen der Entwicklungsgeschichte der Abweichungsgesetzgebung bis hin zu ihrer konkreten Anwendung am Beispiel der Novellierung des sachsischen Naturschutzrechts schlagen. Der Autor nimmt dabei insbesondere das Sachsische Naturschutzgesetz vom 6. Juni 2013 unter abweichungsrechtlichen Problemstellungen in den Blick.

Mozambique has been hailed as a success story by the international community, which has watched it evolve through a series of violent political upheavals: from colonialism, through socialism, to its current democracy. As Juan Obarrio shows, however, this view neglects a crucial element in Mozambique's transition to the rule of law: the reestablishment of traditional chief-tanship and customs entangled within a history of colonial violence and civil war. Drawing on extensive historical records and ethnographic fieldwork, he examines the role of customary law in Mozambique to ask a larger question: what is the place of law in the neoliberal era, in which the juridical and the economic are deeply intertwined in an ongoing state of structural adjustment? Having made the transition from a people's republic to democratic rule in the 1990s, Mozambique offers a fascinating case of postwar reconstruction, economic opening, and transitional justice, one in which the customary has played a central role. Obarrio shows how its sovereignty has met countless ambiguities within the entanglements of local community, nation-state, and international structures. Ultimately, he looks toward local rituals and relations as producing an emergent kind of citizenship in Africa, which he dubs "customary citizenship," forming not a vestige of the past but a yet ill-defined political future.