William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0001
- Subject:
- Law, Legal History
This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what ...
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This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what could be identified as law, starting from inherited beliefs about the sources of English law in Chapter III; and Chapter IV, on theories of law and government, deals with the drive to distinguish law clearly from other moral structures. Finally, Chapters VII-IX turn outward, to the place of Britain and its vaunted Empire in relation to other nation states.Less
This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what could be identified as law, starting from inherited beliefs about the sources of English law in Chapter III; and Chapter IV, on theories of law and government, deals with the drive to distinguish law clearly from other moral structures. Finally, Chapters VII-IX turn outward, to the place of Britain and its vaunted Empire in relation to other nation states.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0016
- Subject:
- Law, Legal History
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior ...
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This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.Less
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0018
- Subject:
- Law, Legal History
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the ...
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This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.Less
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0007
- Subject:
- Law, Legal History
This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the ...
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This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the social and economic context of contracting.Less
This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the social and economic context of contracting.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0004
- Subject:
- Law, Legal History
This chapter on theories of law and government begins with a discussion of the thought of Jeremy Bentham. It then discusses John Austin's reformulation of the province of jurisprudence, intuitionists ...
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This chapter on theories of law and government begins with a discussion of the thought of Jeremy Bentham. It then discusses John Austin's reformulation of the province of jurisprudence, intuitionists and utilitarians, theories of evolution, individualism versus socialism, and late 19th-century jurisprudence.Less
This chapter on theories of law and government begins with a discussion of the thought of Jeremy Bentham. It then discusses John Austin's reformulation of the province of jurisprudence, intuitionists and utilitarians, theories of evolution, individualism versus socialism, and late 19th-century jurisprudence.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0008
- Subject:
- Law, Legal History
This chapter treats public international law with a focus upon the extent to which it was allowed to leech into municipal English law, as well as conditioning British conduct of foreign affairs.
This chapter treats public international law with a focus upon the extent to which it was allowed to leech into municipal English law, as well as conditioning British conduct of foreign affairs.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0009
- Subject:
- Law, Legal History
This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread ...
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This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.Less
This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0006
- Subject:
- Law, Legal History
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and ...
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This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.Less
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0003
- Subject:
- Law, Legal History
This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere ...
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This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere descriptions of propositions that courts would apply as law. In formal terms, legislation and judicial precedent were the two sources that predominated, as they had for centuries. Some legal writings, together with established customs and similar practices, might also rate on occasion; but if they were admitted at all as sources, they tended to be treated as secondary.Less
This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere descriptions of propositions that courts would apply as law. In formal terms, legislation and judicial precedent were the two sources that predominated, as they had for centuries. Some legal writings, together with established customs and similar practices, might also rate on occasion; but if they were admitted at all as sources, they tended to be treated as secondary.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0002
- Subject:
- Law, Legal History
This chapter outlines the 19th-century frame of government and law. Topics discussed include: the guarantee of a rule of law; social relations and the parliamentary franchise; executive power subject ...
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This chapter outlines the 19th-century frame of government and law. Topics discussed include: the guarantee of a rule of law; social relations and the parliamentary franchise; executive power subject to law; the political background of law reform; an independent judiciary; and reform of the court system.Less
This chapter outlines the 19th-century frame of government and law. Topics discussed include: the guarantee of a rule of law; social relations and the parliamentary franchise; executive power subject to law; the political background of law reform; an independent judiciary; and reform of the court system.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0031
- Subject:
- Law, Legal History
This chapter on barristers in the 19th century covers their numbers and composition, preparation for the bar, getting started at the bar, life at the bar, and the inner bar.
This chapter on barristers in the 19th century covers their numbers and composition, preparation for the bar, getting started at the bar, life at the bar, and the inner bar.
Raymond Cocks
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0014
- Subject:
- Law, Legal History
This chapter on the poor law in the 19th century begins with a discussion of the English poor law and how it became the most comprehensive system of public poor relief before the coming of the ...
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This chapter on the poor law in the 19th century begins with a discussion of the English poor law and how it became the most comprehensive system of public poor relief before the coming of the welfare state. It considers debates about the Speenhamland system, under which the poor were given supplements to wages, and these were increased in proportion to rises in the cost of basic necessities such as bread. The chapter then discusses the creation of the Royal Commission on the Poor Laws, parliamentary debates over the Poor Law Amendment Bill, controlling the machinery of the poor law, and the failure of the law.Less
This chapter on the poor law in the 19th century begins with a discussion of the English poor law and how it became the most comprehensive system of public poor relief before the coming of the welfare state. It considers debates about the Speenhamland system, under which the poor were given supplements to wages, and these were increased in proportion to rises in the cost of basic necessities such as bread. The chapter then discusses the creation of the Royal Commission on the Poor Laws, parliamentary debates over the Poor Law Amendment Bill, controlling the machinery of the poor law, and the failure of the law.
William Cornish
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0029
- Subject:
- Law, Legal History
The pragmatic, utilitarian thrust of English private international law in the 19th century meant an absence of commitment either to territory or to person as the presumptive organizing idea of the ...
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The pragmatic, utilitarian thrust of English private international law in the 19th century meant an absence of commitment either to territory or to person as the presumptive organizing idea of the whole field. Comity embodied notions of mutual respect between legal systems. This at least suggested a certain preference for applying the same law to the solution of a legal issue, and for recognizing the decisions of foreign courts, particularly where they were following a parallel course to that on which an English court would take jurisdiction over a dispute with a foreign element and were applying the law that an English court would also apply. Nonetheless the combinations of foreign and local elements could weave patterns too various to provide ready-made solutions. Nowhere was that more evident than in respect of family matters. In this sphere one can observe some growing readiness to accord some place to foreign laws and the decisions of foreign courts. This chapter on foreign elements in family disputes covers the issues of domicil, marriage and divorce, and family governance.Less
The pragmatic, utilitarian thrust of English private international law in the 19th century meant an absence of commitment either to territory or to person as the presumptive organizing idea of the whole field. Comity embodied notions of mutual respect between legal systems. This at least suggested a certain preference for applying the same law to the solution of a legal issue, and for recognizing the decisions of foreign courts, particularly where they were following a parallel course to that on which an English court would take jurisdiction over a dispute with a foreign element and were applying the law that an English court would also apply. Nonetheless the combinations of foreign and local elements could weave patterns too various to provide ready-made solutions. Nowhere was that more evident than in respect of family matters. In this sphere one can observe some growing readiness to accord some place to foreign laws and the decisions of foreign courts. This chapter on foreign elements in family disputes covers the issues of domicil, marriage and divorce, and family governance.
Rosalyn Higgins
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0032
- Subject:
- Law, Legal History
This chapter focuses on the international law role of the House of Lords. It argues that the handling of international law issues is confident and positive in tone. There is an amplitude of judges ...
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This chapter focuses on the international law role of the House of Lords. It argues that the handling of international law issues is confident and positive in tone. There is an amplitude of judges serving on the Appellate Committee (and, indeed, in other courts also) who are thoroughly well versed in international law and prepared to treat it as any other field of law. The pace of cases reaching the Lords relating to points of international law has greatly increased, in part because of the Human Rights Act 1998. But issues of international law increasingly play a component part in other matters that the House of Lords is called upon to determine. Many Law Lords have played their part in pronouncing upon the matters of international law. For instance, Lord Bingham, along with Lords Browne–Wilkinson and Goff before him, have ensured as presiding Law Lords that the House has become a leader in authoritative pronouncements by national courts on matters of international law.Less
This chapter focuses on the international law role of the House of Lords. It argues that the handling of international law issues is confident and positive in tone. There is an amplitude of judges serving on the Appellate Committee (and, indeed, in other courts also) who are thoroughly well versed in international law and prepared to treat it as any other field of law. The pace of cases reaching the Lords relating to points of international law has greatly increased, in part because of the Human Rights Act 1998. But issues of international law increasingly play a component part in other matters that the House of Lords is called upon to determine. Many Law Lords have played their part in pronouncing upon the matters of international law. For instance, Lord Bingham, along with Lords Browne–Wilkinson and Goff before him, have ensured as presiding Law Lords that the House has become a leader in authoritative pronouncements by national courts on matters of international law.
Priscilla Alderson
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0012
- Subject:
- Law, Family Law, Human Rights and Immigration
The idea of children's ‘assent’ to medical research became part of English law in 2004. However, this overrides English legal traditions of children's consent. Although this chapter concentrates on ...
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The idea of children's ‘assent’ to medical research became part of English law in 2004. However, this overrides English legal traditions of children's consent. Although this chapter concentrates on English law and guidance, it has international relevance. English law integrates with European law and also has influence over more than a billion people in the fifty-four British Commonwealth countries. Ethics guidance in England on consent to research influences international projects, based in Britain and conducted in Europe and in every other continent. Discussions about children's consent and assent illuminate meeting points between law and childhood studies across the world. This chapter examines contrasting meanings of consent and ‘assent’, and reviews the related law and ethics. It discusses whether children's consent or their assent offers them best support and protection while they are considering whether to take part in research, and while they are research subjects. It gives examples of some present problems, which indicate the need for broader understanding of children's consent.Less
The idea of children's ‘assent’ to medical research became part of English law in 2004. However, this overrides English legal traditions of children's consent. Although this chapter concentrates on English law and guidance, it has international relevance. English law integrates with European law and also has influence over more than a billion people in the fifty-four British Commonwealth countries. Ethics guidance in England on consent to research influences international projects, based in Britain and conducted in Europe and in every other continent. Discussions about children's consent and assent illuminate meeting points between law and childhood studies across the world. This chapter examines contrasting meanings of consent and ‘assent’, and reviews the related law and ethics. It discusses whether children's consent or their assent offers them best support and protection while they are considering whether to take part in research, and while they are research subjects. It gives examples of some present problems, which indicate the need for broader understanding of children's consent.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0007
- Subject:
- Law, Legal History
This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among ...
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This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among other things, that suggests the extent to which English common law was dependent upon its own circumstances of time and socio-political development.Less
This chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among other things, that suggests the extent to which English common law was dependent upon its own circumstances of time and socio-political development.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0008
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter compares English and German law of unjustified enrichment in terms of scope, taxonomy, and approach. It shows that the English unjust factor approach and the German absence of legal ...
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This chapter compares English and German law of unjustified enrichment in terms of scope, taxonomy, and approach. It shows that the English unjust factor approach and the German absence of legal ground approach are much closer to one another than at first meets the eye. They have both moved unjust(ified) enrichment largely out of the realm of equity and policy considerations into a rule-based and hence more predictable system. They have both adopted a general rule with a list of exceptions. They have struggled to limit the injustice and turmoil which their general rules are capable of creating by refining and expanding the exceptions to those rules. The approach they have each chosen has made them neglect some important aspects, and at times led them to rationalize rather than remedy deficiencies. And while they start from opposite ends, they employ very similar techniques for achieving what are often similar results.Less
This chapter compares English and German law of unjustified enrichment in terms of scope, taxonomy, and approach. It shows that the English unjust factor approach and the German absence of legal ground approach are much closer to one another than at first meets the eye. They have both moved unjust(ified) enrichment largely out of the realm of equity and policy considerations into a rule-based and hence more predictable system. They have both adopted a general rule with a list of exceptions. They have struggled to limit the injustice and turmoil which their general rules are capable of creating by refining and expanding the exceptions to those rules. The approach they have each chosen has made them neglect some important aspects, and at times led them to rationalize rather than remedy deficiencies. And while they start from opposite ends, they employ very similar techniques for achieving what are often similar results.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0009
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter examines whether the comparison between German and English law of unjust(ified) enrichment can be used for developing the law in both legal systems. It first looks at those other areas ...
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This chapter examines whether the comparison between German and English law of unjust(ified) enrichment can be used for developing the law in both legal systems. It first looks at those other areas of law which can provide the legal basis for enrichments under an absence of basis approach, and in particular contract law. Existing differences between English and German contract law imply that an absence of basis approach should not simply be transplanted into English surroundings without a careful examination as to the effects which these differences in contract law can have on unjust enrichment law. Having thus placed an absence of basis approach in context, the chapter looks at the modifications which would then become necessary or advisable within unjust enrichment law. This concerns some English case law which cannot be reconciled with an unjust enrichment approach. It includes issues of taxonomy, in particular whether switching to an absence of basis approach should also entail the adoption of the performance/non-performance divide eventually adopted by German law in the 1960s, or whether English law would do better without this divide and operate a general absence of basis approach more similar to the pre-1960 system in Germany. Finally, the chapter looks at what German law could learn from the comparison with English law.Less
This chapter examines whether the comparison between German and English law of unjust(ified) enrichment can be used for developing the law in both legal systems. It first looks at those other areas of law which can provide the legal basis for enrichments under an absence of basis approach, and in particular contract law. Existing differences between English and German contract law imply that an absence of basis approach should not simply be transplanted into English surroundings without a careful examination as to the effects which these differences in contract law can have on unjust enrichment law. Having thus placed an absence of basis approach in context, the chapter looks at the modifications which would then become necessary or advisable within unjust enrichment law. This concerns some English case law which cannot be reconciled with an unjust enrichment approach. It includes issues of taxonomy, in particular whether switching to an absence of basis approach should also entail the adoption of the performance/non-performance divide eventually adopted by German law in the 1960s, or whether English law would do better without this divide and operate a general absence of basis approach more similar to the pre-1960 system in Germany. Finally, the chapter looks at what German law could learn from the comparison with English law.
J.W.F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.001.0001
- Subject:
- Law, Comparative Law, Legal History
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty ...
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The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.Less
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0007
- Subject:
- Law, Legal History
This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most ...
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This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most distinctive and varied incriminatory component of liability; and, broadly, the exculpatory mechanisms of defences represent the other side of the conceptual coin. A second dimension of general principles embraces auxiliary or complementary forms of criminal liability, spanning and operating alongside specific offences; the most significant of these are inchoate liability (incitement, conspiracy, and attempt), and complicity or secondary liability. To a greater or lesser degree, all of these areas of ‘general principles’ underwent significant development in the 19th century.Less
This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most distinctive and varied incriminatory component of liability; and, broadly, the exculpatory mechanisms of defences represent the other side of the conceptual coin. A second dimension of general principles embraces auxiliary or complementary forms of criminal liability, spanning and operating alongside specific offences; the most significant of these are inchoate liability (incitement, conspiracy, and attempt), and complicity or secondary liability. To a greater or lesser degree, all of these areas of ‘general principles’ underwent significant development in the 19th century.
