Professional Status and the Freedom to Contract: Toward a Common Law Duty of Non-Discrimination

2001 ◽  
Vol 14 (1) ◽  
pp. 79-132 ◽  
Author(s):  
Amnon Reichman
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Case Law ◽  
Professional Status ◽  
The Public ◽  
Goods And Services ◽  
The Core ◽  
The Common

This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer’s group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a duty to provide equal service. It argues that at the core of the rationale that best fits these bodies of case law is a status-based demand placed on those interacting in their capacity as members of an impersonal profession to refrain from taking into account any personal or group-based characteristics beyond those relevant to the provision of goods and services around which the profession is organized.

Prospective Revision of Precedent

1973 ◽  
Vol 8 (2) ◽  
pp. 173-196 ◽  
Author(s):  
G. Tedeschi
Keyword(s):  
Common Law ◽  
Case Law ◽  
General State ◽  
The Public ◽  
Judicial Decisions ◽  
Retroactive Effect ◽  
The Future ◽  
The Common ◽  
Do So

Innovations in case law have traditionally always had retroactive effect also, first on the case in question, and therefore on past conduct, and then, to the extent that authority attaches to the precedent or it is at least followed in practice, on other cases subsequently heard, although the conduct involved here also preceded the declaration of the new rule. Justice Holmes, in a dissenting opinion of 1910, wrote: “I know of no authority in this case to say that in general state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years”.It is fairly certain that Justice Holmes had the Common Law world in mind, but the picture would not be different if we looked at the situation elsewhere. In France as well, for instance, the rétroactivité des nouvelles jurisprudences has been considered as une infirmité du système jurisprudentiel.Nevertheless, it is a fact that the situation excites some consternation among lawyers and the public, which is particularly strong in those matters where retroactivity is singularly severe in its effects and the legislature normally refrains from imposing it, although not forbidden to do so under constitutional principles (laws being interpreted and applied non-retroactively in the absence of any express provision in this regard) and in those instances where there was reliance, explicit or presumed, by the parties on the rule which is subsequently abandoned.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Global Problems ◽  
The Common ◽  
International Human ◽  
Human Rights Norms ◽  
Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

2021 ◽  
Vol 12 (2) ◽  
pp. 116-145
Author(s):  
Paula Giliker
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Tort Law ◽  
Public Authority ◽  
Public Authorities ◽  
Statutory Duty ◽  
Starting Point ◽  
Private And Public ◽  
Legal Position ◽  
The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

scholarly journals ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW

2016 ◽  
pp. 0-0
Author(s):  
Роман Рыбаков ◽  
Roman Rybakov
Keyword(s):  
Common Law ◽  
Case Law ◽  
Historical Method ◽  
Property Relations ◽  
Legal Method ◽  
The Common ◽  
Legal Fictions ◽  
Interpretation Method

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

3. Consent

2021 ◽  
pp. 37-58
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Capacity Act 2005 ◽  
Relevant Case ◽  
The Common ◽  
Mental Capacity Act

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

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