![]() |
![]() |
Your cart is empty |
||
Books > Law > Jurisprudence & general issues > Comparative law
The proposition that the tort of defamation protects reputation has long been axiomatic in the law. The axiom's endurance is surprising: it has long been observed that the law is riddled with inconsistencies and, moreover, the courts and the scholarly literature have rarely discussed exactly what reputation is and how judgments about reputation are made. Reputation and Defamation develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. It is the first book to present a comprehensive study of what reputation is, how it functions, and how it is and should be protected under the law. Reputation, it argues, is best understood in terms of the moral judgments a community makes about its members. Viewed in this way it becomes apparent, contrary to the legal orthodoxy, that defamation law did not really aim and function to protect reputation until the early nineteenth century. Unfortunately, the modern common law has not paid sufficient attention to either the nature of reputation or the historical relationship between reputation and defamation. Consequently, the tests for what is defamatory do not always protect reputation adequately or appropriately. The 'shun and avoid' and 'ridicule' tests have developed so that a publication may be actionable even where it does not tend to prompt a negative moral judgment of the plaintiff. These tests should be discarded. The principal 'lowering the estimation' test, however, is for the most part appropriately geared to the protection of reputation. Importantly, the scope of legal protection has been limited. Words will only be actionable if they tend to make 'right-thinking' people think the less of the plaintiff. The values of Christian tradition and Victorian moralism which became embedded in the concept of 'the right-thinking person' are problematic in the current era of moral diversity. A revised legal framework is proposed. It retains the principal test but re-thinks how and why different criteria for moral judgment should - or should not - be recognised when courts determine whether an attack on reputation will be actionable as defamation. It is argued that 'the right-thinking person' should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity. The proposed framework demands that when courts recognise values at odds with that premise then such recognition must be justified on sound and expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.
What is more paradoxically democratic than a people exercising their vote against the harbingers of the rule of law and democracy? What happens when the will of the people and the rule of law are at odds? Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power? With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes: - The Rule of Law: presenting a historical and theoretical reconstruction of the evolution of the Rule of Law; - The People: dealing with a set of problems around the notion of 'people' and the forces claiming to represent their voice; - Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order; - Elected and Non-Elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people's representation.
This book explores the ambit of the notion of persecution in international law and its relevance in the current geopolitical context, more specifically for refugee women. The work analyses different models for interpreting the notion of persecution in international refugee law through a comparative lens. In particular, a feminist approach to refugee law is adopted to determine to what extent the notion of persecution can apply to gender related forms of violence and what are the challenges in doing so. It proposes an interpretive model that would encourage decision makers to interpret the notion of persecution in a manner that is sufficiently protective and relevant to the profiles of refugees in the 21st century, most particularly to refugee women. The book will be of interest to academics and students in the field of public international law, international human rights law, international humanitarian law, immigration law, European law, and refugee law as well as those working in the areas of international relations.
A significant part of the world's population lives under some sort of federal arrangement. And yet, the concepts of federalism and federation remain under-theorised. Federalist theorists have, for the most part, defined their object by opposition to the unitary state. As a result, they have not developed public law theories that capture the specificity of this type of polity. Bringing together contributions from leading public law theorists and intellectual historians, this volume explores the foundations of federalism. It develops novel perspectives on the core problems of traditional federalist theory and charts new departures in federalist theory and federal power-sharing. At a time when we look for more inclusive ways of ordering public life, the volume fills an urgent theoretical and political need.
The use of "auction-styled" procedures in the mergers and acquisitions field is gaining increased prominence. This volume is the result of a questionnaire circulated to lawyers in both Europe and North America. It tests the level of awareness of auction bids, the level of sophistication of practices and procedures which have grown up around auction bids, and the level of regulatory control in this field. As well as a compilation of the reports received from lawyers, the text includes a final report attempting to draw together the findings.
At the beginning of the twenty-first century the term 'privacy' gained new prominence around the world, but in the legal arena it is still a concept in 'disarray'. Enclosing it within legal frameworks seems to be a particularly difficult task in the employment context, where encroachments upon privacy are not only potentially more frequent, but also, and most importantly, qualitatively different from those taking place in other areas of modern society. This book suggests that these problems can only be addressed by the development of a holistic approach to its protection, an approach that addresses the issue of not only contemporary regulation but also the conceptualization, adjudication, and common (public) perception of employees' privacy. The book draws on a comprehensive analysis of the conceptual as well as regulatory convergences and divergences between European, American and Canadian models of privacy protection, to reconsider the conceptual and normative foundations of the contemporary paradigm of employees' privacy and to elucidate the pillars of a holistic approach to the protection of right to privacy in employment.
This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.
This book shines a light on the still unexplored relationships between federalism and disability rights. It investigates how the UN Convention on the Rights of Persons with Disabilities (CRPD) is implemented by different federal systems around the world. It analyses the effects that the obligations undertaken under the CRPD have on federal governance and on the constitutional division of powers within 14 federal systems, including those in Germany, Canada, Brazil, India, the UK and Italy. The book also considers the trends and patterns of disability rights governance in federal systems and looks at the future developments of comparative disability federalism.
The centre for comparative laws in Africa held its inaugural methodology workshop from 22 to 24 October 2012. Over 40 scholars from various universities in South Africa, Africa, Europe and the United States of America participated in plenary and panel discussions around comparative law in cultural, interdisciplinary and subject context, Western legal traditions and mixed jurisdictions in African comparative legal studies, traditional and informal law in Africa, religious law in Africa and its comparative implications and the role of African comparative legal studies in the development of law in Africa. Comparative law in Africa: Methodologies and concepts is the outcome of the workshop. Its aim is to contextualise comparative legal studies in the African continent, with the ultimate goal of paving the way for the development of a comparative methodology specifically addressed to Africa. The studies presented in this volume offer different views and perspectives around the main theme of how to methodologically approach comparative legal studies in Africa, and how to properly take into consideration all the different layers composing the African legal systems, in order to give them the proper role and the proper place. The diverse background of the different contributors to this volume enriches its continental approach and offers a stimulating voice to African comparative legal scholars to continue their research.
Lord Rodger of Earlsferry was a distinguished judge and scholar. He was a Justice of the Supreme Court of the United Kingdom and the author of many high quality law journal articles and two books. Written in memory of Lord Rodger, this collection contains 47 essays by Lord Rodger's friends and colleagues from the UK and Europe. The essays reflect Lord Rodger's role as a leading judge and also his wide-ranging academic interests including Roman law, Scots law and legal history, and a miscellany of other topics. The authors in this volume are leading academics or judges, and a particularly notable feature is the nine essays written by Supreme Court justices. As the highest judges in the UK they provide a unique insight into the work of the Supreme Court, as well as Lord Rodger's work in the Court. The book also includes the memorial tributes to Lord Rodger which explain his remarkable legal career, including his roles as Lord Advocate (Senior Law Officer of Scotland) Lord President of the Court of Session, Lord of Appeal in Ordinary and, finally, Justice of the UK Supreme Court. The essays include personal reminiscences of Lord Rodger, helping the reader to understand why he was so highly regarded and why his untimely death has dealt such a devastating blow to law in the UK.
This book looks at regulation, policy and implementation of framework agreements, supplier lists and other similar public procurement tools, with a strategic and pragmatic perspective. Whilst procurements of huge volumes and value are performed worldwide through such tools on a daily basis, and despite their complexity and diversity, this topic has rarely been studied in a systematic way. The book fills this major gap. It examines a series of public procurement systems or legal instruments selected to ensure wide coverage – the UNCITRAL Model Law on Public Procurement, the World Bank, the US federal procurement system, EU law, France, Romania, and the UK pre- and post-Brexit. By deconstructing over 20 ‘clusters’ of tools into their key features along a pattern for analysis, the book reconstructs a conceptual framework for purchasing uncertain or indefinite requirements through a transversal perspective across public procurement systems. In this way, the book provides valuable orientation to law and policy makers for improving or reforming this area, to procurement officers in interpreting existing regulation and identifying innovative practical solutions, and to lawyers and the judiciary for a balanced application of the regulation. The book delivers essential material for procurement of uncertain or indefinite requirements.
Comparative constitutional change has recently emerged as a distinct field in the study of constitutional law. It is the study of the way constitutions change through formal and informal mechanisms, including amendment, replacement, total and partial revision, adaptation, interpretation, disuse and revolution. The shift of focus from constitution-making to constitutional change makes sense, since amendment power is the means used to refurbish constitutions in established democracies, enhance their adaptation capacity and boost their efficacy. Adversely, constitutional change is also the basic apparatus used to orchestrate constitutional backslide as the erosion of liberal democracies and democratic regression is increasingly affected through legal channels of constitutional change. Routledge Handbook of Comparative Constitutional Change provides a comprehensive reference tool for all those working in the field and a thorough landscape of all theoretical and practical aspects of the topic. Coherence from this aspect does not suggest a common view, as the chapters address different topics, but reinforces the establishment of comparative constitutional change as a distinct field. The book brings together the most respected scholars working in the field, and presents a genuine contribution to comparative constitutional studies, comparative public law, political science and constitutional history.
Changes in banking and securities regulation in many countries since 1980 have allowed banks to expand their range of financial services far beyond mere lending, an opportunity banks have been eager to grasp. This business development entails a responsibility; offering informed advice on the choices that customers must make. If we are to judge by a steadily increasing stream of lawsuits, as well as the clear results of customer surveys, most banks fail this part of the challenge. Should the law intervene? That is the basic question posed by this important book. In examining and evaluating the complex answer, and its critical implications for the banking industry, the author uses a comparison of legal systems, developments, and events in two major banking jurisdictions, England and Germany, investigating the relations in each system between the relevant legal rules and actual business practices.
The German Ministry of Defense decided in 2000 to commission a study comparing various European systems of military law. The present book contains not only the original study but also all national reports in English. It provides a comparative analysis of different European military law systems on the basis of national reports.
Studies of corporate governance traditionally focus on the
governance problems of large publicly held firms, and policymakers'
recommendations often focus on such firms. However most small
firms, and in many countries, even many large companies, are
closely held. This book provides a comprehensive account of closely
held businesses and their particular governance problems. It
explores current discussions and reforms in Europe, the United
States, and Asia providing a state of the art account of the law
and the economics.
Due to rapid developments in the communication sector, the right to privacy faces new challenges. The increasing digitization and internationalization of communication processes have raised a number of issues, and lead to conflicts wherever national legal systems and moral concepts collide. Particularly in the areas of data protection and liability of online service providers, universal approaches are required. This title presents positions of specialists in Europe, Australia, the US and Canada which contribute to the international dialogue and thereby offer a starting point for a sustainable policy for the protection of privacy rights
The book is the result of a joint research project on the tax treaties concluded between the People's Republic of China and European countries. Each chapter was jointly prepared by European and Chinese experts. A particular focus of the work is an analysis of the extent to which Chinese tax treaties follow the OECD Model Tax Convention on Income and Capital, the UN Income and Capital Model Convention or an emerging "Chinese Model"; and the rationale behind the deviations. The book also considers differences in Chinese tax treaty policy between EU and Non-EU member states as well as relevant policy changes over time. Among the topics covered are the following:;Treaty entitlement (Art 1 and Art 4 OECD Model);Business Profits (Art 6, 7, 8, 9 and 14 OECD Model);Passive Income (Dividends, Interest, Royalties: Art 10, 11 and 12 OECD Model);Capital Gains (Art 13 OECD Model);Employment Income (Art 15 and 16, 18, 19 and 20 OECD Model);Artistes and Sportsmen (Art 17 OECD Model);Methods to Avoid Double Taxation (Art 23);Non-Discrimination (Art 24 OECD Model Convention);Mutual Agreements, Exchange of Information, Collection of Taxes (Art 25, 26 and 27 OECD Model)
The subject of this Conference concerns the impact the enlargement of the Euro pean Union has on the constitutional provisions of both levels of European ad ministration, the national and the European level. This subject is the more attractive because the 'constitutional' impact of en largement is an essential element in the context of the 'rule of law' as one of the 1 general principles of the Union. Here a relationship does exist with objectives such as a good and transparent system of governance, a democratic legislative process, an independent judiciary and an adequate system of legal protection. As to the national level, the implications membership of the Union has for the constitutional texts of the (candidate) member States have a connection with the fundamental characteristics of Community law such as priority of European law (over national law), direct applicability and direct effect. These principles reflect the interest in ensuring that European law, once applied in the national context by the public authorities or the judiciary, is made fully effective, for the benefit not only of the public authorities but also of the ordinary citizen."
This book is the third volume in the Oxford International and Comparative Insolvency Law Series. It addresses one of the critical issues of any insolvency by providing comprehensive analysis of the law and practice in relation to creditor claims. As with the two previous volumes in the series the book provides a comparative view by setting out the relevant law and practice in over 20 jurisdictions drawing out the divergences and common features of domestic insolvency laws from a broad spectrum of countries. Areas covered include submission of claims, verification and admission of claims, ranking of insolvency and administration claims, treatment of non-enforceable claims, and voting and participation rights. Quality, uniformity and the high level of detail of National Reports are the key benefits of this volume. The book assists practitioners in assessing which ranking and participation rights could be asserted by the various types of creditors in the jurisdictions covered. For scholars it provides access to a wealth of information which is currently not accessible in English.
Environmental regulation came of age towards the end of the 20th century as the blunt methods of command-and-control were subjected to trenchant criticism from both economists and lawyers in the United States and Europe. As a result of this intellectual development, as well as continuing and increasing severity of environmental problems, there is a need for fresh thinking about regulatory methods that are rational from both economic and legal points of view. This text focuses on the viability of one particular regulatory innovation - the use of agreements or contracts for environmental regulation - as it has been practised in the United States and Europe. The various contributions explore the general idea that certain kinds of environmental problems may best be addressed through contracts among interested parties, including representatives of various levels of government, business, local community and employment representatives, and public interest groups. The parties get together to discuss a particular problem and then agree to an agreement or contract designed to address key issues and interests. At least in some situations, this approach may yield greater flexibility, stronger commitment, and more creative outcomes than traditional command-and-control regulation. Experiments in the use of environmental contracts have begun on both sides of the Atlantic, a fact which makes the comparative study offered here especially timely and valuable.
Family justice requires not only a legal framework within which personal obligations are regulated over the life course, but also a justice system which can deliver legal information, advice and support at times of change of status or family stress, together with mechanisms for negotiation, dispute management and resolution, with adjudication as the last resort. The past few years have seen unparalleled turbulence in the way family justice systems function. These changes are associated with economic constraints in many countries, including England and Wales, where legal aid for private family matters has largely disappeared. But there is also a change in ideology in a number of jurisdictions, including Canada, towards what is sometimes called neo-liberalism, whereby the state seeks to reduce its area of activity while at the same time maintaining strong views on family values. Legal services may become fragmented and marketised, and the role of law and lawyers reduced, while self-help web based services expand. The contributors to this volume share their anxieties about the impact on the ability of individuals to achieve fair and informed resolution in family matters.
The South African Truth Commission assesses different versions of the South African past, the complex negotiations leading to the establishment of the Commission and the complex politics of amnesty, justice, and nation building.
This volume argues for a legal scholarship that maintains its identity vis-a-vis neighboring disciplines without collapsing into doctrinairism."
The aim of the book is to highlight the law and economics issues confronting civil law countries. The following questions are addressed in this volume: to what extent have the existing codes in civil law countries been designed to incorporate economic considerations? Can the modifications made to codified rules over time be explained by a will to react to new economic constraints? Which economic problems are at the root of the revision of codes? And, given that the code is not the only source of law in civil law countries, the volume also explores the relationship between law and economics in the context of both the legislature and the courts. |
![]() ![]() You may like...
Introduction To Legal Pluralism In South…
C. Rautenbach
Paperback
![]()
The Limits of Criminal Law (student…
Matthew Dyson, Benjamin Vogel
Paperback
R3,442
Discovery Miles 34 420
Regulating Unfair Banking Practices in…
Aurelia Colombi Ciacchi, Stephen Weatherill
Hardcover
R8,332
Discovery Miles 83 320
American Law - An Introduction
Lawrence M. Friedman, Grant M. Hayden
Hardcover
R3,409
Discovery Miles 34 090
|