Hate Speech in the United Kingdom: An Historical Overview

Towards a General Notion of Good Faith in English Contract Law

The English legal system is based on the common law. Consistency and predictability are assured by prior decisions of the courts on similar matters establishing judicial precedent. The continuing role of the courts is to apply and develop the common law. Statute law is created by Parliament and takes precedence over common law, Parliament being the supreme legal authority of the United Kingdom. This supremacy has been affected by the UK’s membership of the European Union (EU), with European Law taking precedence over British Acts of Parliament (although it is still thought possible by many that Parliament could reassert its supremacy if it should so choose). The alternative legal tradition in most of Europe is derived originally from the legal system of Ancient Rome, also known as Civil Law (the latter not to be confused with English ‘civil law’ which refers to non-criminal legal matters – see below). Over the centuries the code developed as a body of international law, the ius commune and was later codified in many countries as their own national expression of law. In contrast to common law precedent, consistency is achieved by judicial application and interpretation of the code, rather than of prior case law decisions. The United Kingdom exported the English legal system to its colonies, including the United States, and the countries of the Commonwealth. Most retained it after independence. By similar colonial expansion many countries of Europe established Roman law as the predominant legal system. Other nations, including Turkey and Japan, adopted Roman law as the basis of their legal systems. A few countries have systems exhibiting a mixture of common and Roman law elements. A third international legal system is based on religious law, mainly the Sharia Law, derived from the Islamic faith, which exhibits many differences from Western systems, such as a prohibition on exacting interest. It is the basis of law in countries such as Saudi Arabia and Iran. Wales shares the same common law tradition as England. Scotland had developed its own more Roman law-based tradition and continues with this system today (see Chapter 2). The modern law in Northern Ireland is also based on the common law, a consequence of the Plantation in the seventeenth century, followed by the Union of Great Britain and Ireland in 1801. After Partition in 1922, Northern Ireland retained the common law system.

This paper considers the issues of villeinage and slavery in England and the British colonies; the decision in Somerset v. Stewart' and other cases in English common law courts; the application of English common law in the colonies in the eighteenth and nineteenth centuries, with particular reference to the British colonies of Demerara, Essequibo and Berbice (formerly British Guiana, now Guyana); the Magna Carta 1215 to the Slavery Abolition Act 1833; the factors which led to the introduction of human rights provisions in English law in the Human Rights Act 1998; and the decision of the House of Lords in A & Others v Secretary of State for the Home Department2 in 2005, relating to the question of admissibility of evidence procured by torture. The thesis of the paper is that English common law was found wanting in connection with the application of fundamental principles of human rights in the United Kingdom and colonies. Lord Mansfield and the other judges who heard the case of Somerset were provided with an excellent opportunity to apply fundamental common law principles of personal security and liberty of the individual to rule that slavery and the slave trade were in breach of the common law and to set a precedent by declaring the liberty of each and every slave who arrived on English shores. Sadly, the judgment failed to live up to the expectations of many of those who had followed the case with avid interest, and it was not until 228 years after that judgment that fundamental principles of human rights became part and parcel of English domestic law, with the introduction of the Human Rights Act 1998 on 2 October 2000.

'A Patchwork of Accommodations': Reflections on European Legal Hybridity and Jurisdictional Complexity

Introduction This chapter briefly explores current debates on five aspects of Scots law, namely: (a) the revision of the ‘legal nationalist’ history of Scottish private law; (b) the devolution of legislative power over Scots law to a Scottish Parliament; (c) the Scottish approach towards ideas of European integration or harmonisation; (d) the place of Scots law within the Civilian–Common Law dichotomy; and (e) the future direction of development of Scots law. A sixth debate, on ‘what should be the main vehicle of reform – judicial development, statutory reform or codification?’, is excluded since it is considered by Professor Clive's chapter. Criminal law and public law are also excluded. The United Kingdom: ‘parts’ and regions The United Kingdom is divided into three ‘parts’ each with its own independent system of law and structure of courts, namely (1) England and Wales, which form one part; (2) Scotland; and (3) Northern Ireland. It is English law that applies within England and Wales: nobody ever talks of Anglo-Welsh law. In the United Kingdom English law is in theory equal in status to Scots law, but in the British colonies it was always English law that was introduced, which thereby became the imperial law. The debate about revision of the ‘legal nationalist’ history of scots law The debate about the true nature of Scots law and its relationship with the English common law and Continental civilian traditions is bound up with the writing of Scottish legal history, to the dismay of those academically correct historians who would like to keep legal history as a safe (and perhaps even rather dull) discipline immune from modern ideological concerns.

Laws prohibiting religious vilification (or religious ‘hate speech’) are controversial and often criticised. On the one hand, it seems obviously wrong that someone should be insulted and humiliated on the basis of his or her religious commitments. But how far should the law go in putting controls on freedom of speech? Critics charge that religious vilification laws amount to an undue restriction of freedom of speech, and in fact may generate, rather than reduce, acrimonious religious debate in multicultural and multi-faith societies.

The English common-law rules of private international law have, to a large extent, been replaced by European conflicts-law regulations in the United Kingdom (UK). Nevertheless, English common law remains highly influential in numerous jurisdictions. In many legal systems, the private-international-law rules are based fundamentally on the common-law rules developed by English courts. This is problematic since the common-law rules of private international law may be outdated. This article examines the English common-law choice-of-law rules – more specifically, the rules and principles concerning the determination of a tacit choice of law in international commercial contracts. The traditional common-law position is compared to selected common-law jurisdictions – namely, Australia, Canada, India, Israel and New Zealand. Finally, the article highlights the progress (or lack thereof) in the aforementioned common-law jurisdictions in addressing the issues related to the determination of a tacit choice of law in international commercial contracts.

551State immunity — Jurisdictional immunity — Employment at United States air base in United Kingdom — Claim for unfair dismissal and unequal pay — State Immunity Act 1978 — Common law — Determination of sovereign functions — Environmental engineer — Whether environmental engineer performing sovereign functions — The law of England

Having established in a broad comparative survey what caused the preponderance of judge, legislator or jurist in Europe, I now intend to return to my starting point, the difference between the English common law and the rest of Europe. The reason why the English judiciary played such an exceptional role has been established, but this fact does not by itself explain why the English common law is so different. One can very well imagine an English, judgemade variant of a common European law. Thus one hears that at the present time the same European Community rules are not interpreted similarly on the Continent and in the United Kingdom. Judges' law in one country and legislators' law in others would normally have produced some differences, but these might have been technical only, without involving the substance of the law. To put it in more concrete terms: one can imagine a situation where the substance of European feudal law remained common to all countries, even if its development in the course of the later Middle Ages was the task of the judiciary in some countries and of the legislature in others. Equally one can imagine that more progressive laws corresponding to an urban and commercial society would have arisen through the action of judges in some countries and of kings and estates in others. The difference between common law and continental law goes much further than that: they were not only developed by different organs, their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman.

Reviewed by: HATE: Why We Should Resist it with Free Speech, Not Censorship by Nadine Strossen Richard Ashby Wilson (bio) Nadine Strossen, HATE: Why We Should Resist it with Free Speech, Not Censorship (Oxford University Press 2018), ISBN: 9780190859121, 232 pages. Hate is trending. The sitting president of the United States regularly mobilizes his political constituency by vilifying Mexican immigrants as “criminals and rapists” who “infest” America, and by promoting a “zero tolerance” policy at the border that punitively separates children from their parents, including persons applying for asylum. There has been a resurgence in white nationalist ideology globally both in mainstream electoral politics and in ugly scenes on the streets of Charlottesville, Dresden, and Warsaw. In the United Kingdom, hate crimes spiked after the Brexit referendum and in the USA, there has been a steady rise in hate crimes against African-Americans, Muslims, immigrants and members of the LGBT community. Given this current paroxysm of populism, isn’t it high time we re-evaluated our commitment to freedom of expression and start contemplating new legislation to regulate discriminatory speech that targets vulnerable minorities? In HATE: Why We Should Resist it with Free Speech, Not Censorship, Nadine Strossen, former national President of the American Civil Liberties Union (ACLU), offers a resounding defense of free speech and rejects attempts to suppress or ban speech that is constitutionally protected under the First Amendment. Free speech is the lifeblood of democratic deliberation, argues Strossen, and much hate speech in the United States, while offensive, is protected speech and should remain so. Current US law only suppresses speech that intentionally advocates imminent lawless action that is likely to occur, and even then, the regulation of speech must occur in a way that is consistent with the viewpoint (or content) neutrality principle which inhibits the state from disfavoring some opinions simply because they are disagreeable. Strossen starts with the observation that there is no clear and consistent definition of “hate speech,” which she puts in scare quotations throughout the book. Hate speech is not a term of legal art and it is simply wrong to assert, as some liberal politicians have, that “hate speech is not free speech.” In Strossen’s view, “the terms ‘hate speech’ and ‘hate crimes’ are simply deployed to demonize views people find offensive and to call for punishing a broad swathe of expression, including political discourse that is integral to our democracy.”1 Reviewing hate speech laws in the US and globally, Strossen concludes that it is simply not possible to draft hate speech laws that are not unduly vague, overbroad and counter-productive.2 Germany, France, and other European countries convict hundreds of defendants a year for offences as capacious as “incitement to hatred,” and Strossen documents a number of cases that seem disproportionately chilling of political [End Page 213] speech. They include the 2014 arrest of a British politician for publicly reading a Winston Churchill quote from 1899 that denounced the treatment of women in Muslim countries, and the conviction of a Danish man in 2016 who criticized “the ideology of Islam” on Facebook, and posted the statement, “Islam wants to abuse democracy in order to get rid of democracy.”3 She reminds us also of the long and repressive history of government censorship in the United States, including how, in the 1830s, Southern states banned abolitionist speech on the grounds that it had the potential to incite violence and rebellion. She observes that the Republican National Committee and some state legislatures have included the Black Lives Matter movement in resolutions condemning hate speech. HATE addresses the lively and fairly acrimonious campus hate speech debate currently taking place in the United States, and Strossen counsels faculty and students to confront provocative speakers at universities with “counterspeech” and vigorous opposing arguments, rather than to silence them with heckling and censorious campus hate speech codes.4 She points out that all the campus speech codes challenged in the courts by the ACLU have been struck down on First Amendment grounds and recommends that universities permit all speech that the government does not itself censor.5 Strossen does not countenance the view that merely being exposed to denigrating speech is in...

State immunity — Jurisdictional immunity — Employment — Foreign military base — United Kingdom national employed as civilian computer operator on United States military base in United Kingdom — State Immunity Act 1978 — Whether Section 16(2) applicable — Whether doctrine of restrictive immunity applicable under common law — Whether act de jure imperii or de jure gestionis — Whether contract kind that private individual could enter into — Whether performance of contract involving both parties in public functions of foreign State — Nature of breach of contract or other act of foreign State giving rise to proceedings — Whether investigation of claim involving investigation into public or sovereign acts of foreign State — Whether respondent entitled to immunity — The law of England

Unity, divergence and convergence in the common law of obligations / Andrew Robertson and Michael Tilbury -- The influence of comparative law on the English law of obligations / Andrew Burrows -- Unity, then divergence : the Privy Council, the common law of England and the common law of Canada, Australia and New Zealand / Paul Finn -- A conscious effort to develop a "different" common law of obligations : a possible endeavour? / Goh Yihan -- A common law of tort : is there a European rift in the common law family? / Paula Giliker -- A judicial perspective on the development of common law doctrine in the light of statute law / Anthony Mason -- Public actors and private obligations : a judicial perspective / Sian Elias -- The tort liability of public authorities : a comparative analysis / Peter Cane -- We'll meet again : convergence in the private law treatment of public bodies / Niamh Connolly -- How to have a common private law : the presuppositions of legal conversation / Allan Beever -- The philosophies of the common law and their implications : common law divergences, public authority liability and the future of a common law world / Dan Priel -- Obligations, governance and society : bringing the state back in / TT Arvind -- Divergent evolution in the law of torts : jurisdictional isolation, jurisprudential divergence and explanatory theories / James Gouldkamp and John Murphy -- Common law values : the role of party autonomy in private law / Sarah Worthington

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

Singapore and the UK share the same common law heritage. English law was imported into Singapore through the colonisation of the island in the nineteenth‐century. Singapore law developed in a similar manner to English law, subject to exceptions to reflect the different ethnic and religious identity of Singapore. It is not true to say that English law and Singapore law are identical, despite their common law roots. Since the passing of the Application of the English Law Act in 1993, English statutes are no longer automatically followed in Singapore; however, English common law principles reflected in case law continue to be important. This paper looks at applications in contract law of key areas relating to building defects, such as materials, workmanship and design, in the context of contract law in Singapore.

This article provides a comparative analysis of the remedies and challenges in the protection of stakeholder rights under OHADA (Organization for the Harmonization of Business Law in Africa) and English corporate law. The study focuses on key legal remedies available to stakeholders, including the derivative action model, the unfair prejudice remedy, personal right of action, remedies for breach of contract and torts, representative actions amongst other remedies. Under OHADA, the uniform legal framework aims to harmonize business laws across member states, promoting legal certainty and economic growth. In this context, the derivative action model allows minority shareholders to seek redress for wrongs committed against the company, while the unfair prejudice remedy protects stakeholders from actions that harm their interests. Personal right of action and remedies for breach of contract and torts provide additional avenues for stakeholders to seek justice. Representative actions further enable collective redress for affected parties. In contrast, English corporate law, rooted in a common law tradition, offers flexibility and judicial interpretation in protecting stakeholder rights. The derivative action model in English law allows shareholders to bring claims on behalf of the company, while the unfair prejudice remedy addresses situations where minority shareholders are treated unfairly. Personal right of action and remedies for breach of contract and torts are well-established, providing robust protection for stakeholders. Representative actions in English law facilitate collective litigation, enhancing access to justice. In tandem with the foregoing, this paper explores challenges in the practical enforcement of these remedies, including differences in legal culture, enforcement mechanisms, and jurisdictional issues. By comparing OHADA and English corporate law, the study provides insights into the effectiveness of various legal frameworks in protecting stakeholder rights and offers recommendations for enhancing stakeholder protection through legal reforms and policy initiatives. Through a content analysis of primary and secondary data, we uphold that this article contributes to the discourse on corporate governance and stakeholder theory, offering valuable perspectives for policymakers, legal practitioners, and scholars interested in the protection of stakeholder rights in diverse legal environments.