Introduction

2019 ◽  
pp. 1-28
Author(s):  
Barbara Havelková ◽  
Mathias Möschel
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Legal Aspects ◽  
Individual Liberty ◽  
Legal Foundations ◽  
Research Questions ◽  
The Individual ◽  
Institutional Choices ◽  
Over Time

The Introduction draws together the chapters’ findings in relation to the two research questions which have animated the project. The first question asked how anti-discrimination law fares in civil law jurisdictions of Europe and how it fits into them. The Introduction notes that while anti-discrimination law is still seen as a foreign transplant and a legal irritant in many places, it does not uniformly fare poorly. Its success varies and appears to depend not only on the country, but also the area of law, the actors involved, a particular concept or ground of discrimination, and has often evolved over time. The second question asked what factors influence anti-discrimination law’s fit or lack of it. ‘Legal’ as well as ‘extra-legal’ aspects seem to favour or hinder anti-discrimination law, but as they are often not always clearly separable and distinguishable, we locate four types of factors on a spectrum. On the legal side, pre-existing legislation and case law have played a role as have institutional choices. Constitutional and legal foundations and narratives, such as the myth of ‘universalism’ in France, have also influenced the success of anti-discrimination law. Finally, the wider political and social context is discussed, noting that the individual, liberty-oriented politics of common law countries, with their greater reflection of issues of cultural recognition, might be more easily compatible with anti-discrimination law, while the more communitarian, collective approach of continental European countries, with their emphasis on dignity and social-welfare solutions to social problems, might be less so.

The Citation Practices of the High Court of Australia, 1905–2015

2019 ◽  
Vol 47 (4) ◽  
pp. 655-695
Author(s):  
Russell Smyth ◽  
Ingrid Nielsen
Keyword(s):  
Empirical Study ◽  
Common Law ◽  
Case Law ◽  
Diverse Range ◽  
High Court ◽  
Secondary Sources ◽  
Citation Practices ◽  
The Individual ◽  
High Court Of Australia ◽  
Over Time

We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

scholarly journals The interface between old age psychiatry and the law

2002 ◽  
Vol 8 (4) ◽  
pp. 271-278 ◽  
Author(s):  
Brian Murray ◽  
Robin Jacoby
Keyword(s):  
Old Age ◽  
Psychiatric Care ◽  
Common Law ◽  
Civil Law ◽  
The Elderly ◽  
Legal Aspects ◽  
Northern Irish ◽  
Care For The Elderly ◽  
Old Age Psychiatry ◽  
The Uk

This article aims to provide a practical overview concentrating on civil legal aspects of psychiatric care for the elderly. We limit ourselves to English law (which also has jurisdiction in Wales; Scottish and Northern Irish law may be similar, but not identical). Civil law can, in turn, be divided into statute law (legislation provided by Parliament) and common law (the UK, unlike some European countries, has a strong tradition of law based on previous rulings by judges).

scholarly journals The barratry of the shipmaster in early modern law: the approach of Italian and English law courts

2019 ◽  
Vol 87 (4) ◽  
pp. 504-574
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Legal Framework ◽  
Walk Away ◽  
Long Time ◽  
Law Courts ◽  
The Difference

SummaryFor a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

THE FUTURE ENFORCEMENT OF ASYMMETRIC JURISDICTION AGREEMENTS

2017 ◽  
Vol 67 (1) ◽  
pp. 37-61 ◽  
Author(s):  
Louise Merrett
Keyword(s):  
Financial Markets ◽  
Common Law ◽  
Hague Convention ◽  
Case Law ◽  
Alternative Methods ◽  
International Financial Markets ◽  
Recent Developments ◽  
The Hague ◽  
The Individual ◽  
The Hague Convention

AbstractAsymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.

scholarly journals A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

2021 ◽  
Vol 9 ◽  
Author(s):  
D. Hoadley ◽  
M. Bartolo ◽  
R. Chesterman ◽  
A. Faus ◽  
W. Hernandez ◽  
...  
Keyword(s):  
Common Law ◽  
Case Law ◽  
Global Community ◽  
Upward Trend ◽  
The United Kingdom ◽  
Legal Literature ◽  
Domestic Courts ◽  
Over Time ◽  
Selection Of ◽  
National Borders

There is a growing discussion in the legal literature of an emerging global community of courts composed of a network of increasing judicial dialogue across national borders. We investigate the use of foreign persuasive authority in common law countries by analyzing the network of citations to case law in a corpus of over 1.5 million judgments given by the senior courts of twenty-six common law countries. Our corpus of judgments is derived from data available in the vLex Justis database. In this paper we aim to quantify the flow of jurisprudence across the countries in our corpus and to explore the factors that may influence a judge’s selection of foreign jurisprudence. Utilization of foreign case law varies across the countries in our data, with the courts of some countries presenting higher engagement with foreign jurisprudence than others. Our analysis shows that there has been an upward trend in the use of foreign case law over time, with a marked increase in citations across national borders from the 1990s onward, potentially indicating that increased digital access to foreign judgments has served to facilitate and promote comparative analysis. Not only has the use of foreign case law generally increased over time, the factors that may influence the selection of case law have also evolved, with judges gradually casting their research beyond the most influential and well-known foreign authorities. Notwithstanding that judgments emanating from the United Kingdom (chiefly from the courts of England and Wales) constitute the most frequently consulted body of jurisprudence, we find evidence that domestic courts favor citing the case law of countries that are geographically proximal.

scholarly journals Requirements for assuming a permanent establishment under Art. 5 OECD Model Tax Convention

2021 ◽  
Vol 1 (1) ◽  
pp. 111-125
Author(s):  
Mandy Witt
Keyword(s):  
Research Question ◽  
Common Law ◽  
Relevant Literature ◽  
Civil Law ◽  
German Law ◽  
Case Law ◽  
International Level ◽  
Permanent Establishment ◽  
The Common ◽  
Article 5

In January 2019, the German Federal Finance Court defined the legally binding requirements with respect to a fixed place of business being a matter of a permanent establishment according to German law, thus the revenue generated being subject to the German taxation.This article addresses the research question ‘Which criteria have to be met by a permanent establishment to be effective for tax purposes?’Regarding the methods, the article reviews relevant literature and case law to identify the prevailing and dissenting opinions on the requirements for assuming a fixed place of business under Art. 5(5) OECD-Model Tax Convention. As to the question whether one can refer to a fixed place of business as a permanent establishment, the courts use to differentiate between Civil Jurisdiction and Common Law. For the sake of clarity, the courts coined the article 5 of the OECD[1] Model Tax Convention. In accordance to the abovementioned Model Tax Convention, binding provisions were defined on the international level for both, countries using the Common Law as well as for those using the Civil Law, with respect to the requirements as to a permanent establishment and the resulting country of taxation to be applied. In doing so, the question arose whether for instance a lockbox would represent a permanent establishment or not.However, the contracting states did not succeed in determining clear requirements as to the existence of the establishment in question. In fact, they left it to the state in question to define their respective double-tax agreements according to their own needs.    

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

Part VI Providing and Obtaining Assistance, B Obtaining Assistance, 21 Judicial Cooperation Including Obtaining Evidence

2017 ◽  
Author(s):  
Peddie Jonathan
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
Over Time

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.

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