Privacy before Campbell

A chapter on public law values in the common law is contingent at a number of junctures. ‘Public law values ’ implies a separate ‘public law’, which is a term with no standardised meaning. Indeed, the very existence of a public–private divide is hotly debated, let alone whether it makes sense to talk of a single distinction, or multiple distinctions drawn for different purposes. If one puts those debates to one side and accepts that it is sometimes useful to assign laws into ‘public’ or ‘private’ domains, one finds further debates about the nature and utility of identifying specifically public law ‘values’, as opposed, say, to public law rights or political values. There are as many different definitions of public law as there are reasons for asking why we might want to categorise a law as public or private, and whether categorisation serves any purpose beyond the academy's convenience of designing workable curriculums. Certainly, most practitioners (even those expert in judicial review matters) would characterise their practices in ways other than ‘public’ or ‘private’ law – they might, for example, describe themselves as child welfare or migration lawyers. Practitioners frequently draw another distinction, describing judicial review applications as ‘public law’ and claims for damages for exactly the same underlying administrative action as ‘private law’. Any choice between the ‘public’ and ‘private’ labels is important to the actual litigants only if its procedural or substantive consequences matter, and this chapter will note several serious consequences whose rationales are hard to defend. Ideally, what should count are the reasons for asking why one might want to distinguish between public and private law, or between the values of public and private law. This chapter will leave out of account laws that Parliament enacts for the public benefit, but that apply only to private sector actors or behaviour, obvious examples being the greater parts of statutory criminal law, and market competition law. Indeed, this chapter will deal with statutory law only so far as its underlying values have spilled over into the common law's public realms. Statutes are in one sense always enacted to advance a current perception of the public interest. Also omitted will be any discussion of what remains of the common law of crime and related police powers, although these have been classified as ‘public’ (but not necessarily ‘public law’) since Blackstone's time.

This article advocates for applying private law theories originating in the common law to EU private law. It argues that those theories can enhance the coherence and workability of EU private law, which currently lacks a comprehensive doctrinal structure. They can also help EU private law overcome the prevailing but flawed functionalist approach that suggests that EU private law primarily serves as a policy tool to achieve specific goals.The article unfolds in three parts: first, it compares the development of civil and common law private law theory, highlighting why thick private law theory only developed in common law jurisdictions and arguing that the same reasons apply to EU private law. Second, it contends that common law theories can enrich the discourse on EU private law, emphasising the need to consider both EU and national private law norms together. Lastly, it proposes that the common law-derived New Private Law theory offers a promising approach to interpreting EU private law, reconciling interpersonal aspects with instrumental objectives. This integration could foster a common language for discussing EU private law, akin to Roman law’s historical role. The paper encourages scholarly debate and adaptation of these theories to local conditions, aiming to bridge the gap between private law theory in common and civil law jurisdictions.

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 Political Economy Of Fairness: Frank Iacobucci's Labour Law Jurisprudence† Brian Langille Faculty of Law, University of Toronto. Patrick Macklem Faculty of Law, University of Toronto. I Introduction Although Frank Iacobucci ran some rather large operations during his magnificent career (as provost of the University of Toronto, the largest university in the country, and as deputy minister of justice, the largest law firm in the country), and probably spent more time than he cares to remember on personnel issues, he was not a labour lawyer in his pre–Supreme Court life. But it is fair to say that he became one while on the Court. A good one. This is no mean achievement, and it is one in which Frank takes, as he has publicly admitted, some pride in having, as he put it, 'played in a minor role in the development of an ongoing debate on this most fundamental part of our lives.'1 It is no mean achievement because to be a good labour lawyer requires an overview, a coherent account, of all of the various and disparate laws (common law, employment-standards law, human-rights law, collective bargaining law – and much else) that bear upon the lives of human beings engaged in productive activity – often, not always, and decreasingly, within the legal category we call 'employment.' Articulating such an overarching and coherent account of the field is both difficult and a necessary precondition to principled decision making. It is a task Frank undertook with insight and passion. In what follows we first discuss this issue of the nature of labour law and Frank's role in articulating its basic theory. Then we discuss Frank's contributions to labour law under three headings: the common and statutory law of dismissal, the law of collective bargaining, and freedom of association under the Charter of Rights and Freedoms. Finally, we attend to several other cross-cutting themes in Frank's judgments that strike us as significant and revealing, not only of Frank's attitudes to law in general, and to labour law in particular, but of his attitude to life itself. Taken [End Page 343] together, these offer, as our title suggests, not simply a compelling view of the underpinnings of labour law but a moving and realistic account of the political economy of fairness. II What is Labour Law? An account of labour law is a complex narrative of a particular sort that can both explain the field – what it is and is not – and tell why it is important. It must lay out the conceptual metes and bounds of the subject and provide a normative justification for it. Frank had a deep understanding of what this part of our law was all about. He passionately and consistently gave voice to this basic understanding of labour law's point and purpose in the decisions he authored. His account was not unfamiliar and indeed it is important that it be familiar in order to be an account of what professional labour lawyers know is labour law. But it is not often that labour lawyers stop to articulate the basic account of their discipline. They are like fluent speakers of a language who have forgotten, if indeed they ever knew, its basic rules of grammar. But in the role in which Frank found himself, and given important elements of his judicial philosophy, he had to articulate the deep grammar of labour law by giving voice to its constituting narrative. Canadian labour law is the better for it, and, as in so many other respects, we are in his debt. Unlike many areas of law, labour law does not derive its coherence as a subject matter from distinctions and labels that traditionally demarcate legal fields, such as constitutional law versus statutory law; public law versus private law; or contract, property, or tort. Labour law straddles private law and public law and many classifications within each. Its private law...

Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK's Protection of Physical Privacy?

The inadequacies of English common and statutory law have left a noticeable gap in the UK's protection of physical privacy. Mann J's 2019 decision in Fearn v Board of Trustees of the Tate Gallery helped fill this gap as it acknowledged that overlooking between neighbours could constitute an actionable nuisance. A year later, the Court of Appeal reversed this development and reaffirmed that private nuisance cannot be used to combat breaches of privacy. This article evaluates the extent to which the High Court decision in Fearn was a useful and desirable tool for defending physical privacy in order to assess the correctness of the appellate decision. The article contends that Mann J's extension was a justified development as it conformed with precedent, the scheme and principles of private nuisance, the text and horizontal effect of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, cases decided in the European Court of Human Rights, and broader policy. However, the article acknowledges that Fearn was also a problematic development with limited potential as a protection mechanism. Its limitations arose from the conflict between traditional understandings of the right to privacy and nuisance's association with property, the land-based rationale for compensation in nuisance, the standing restrictions retained from Hunter v Canary Wharf Ltd, irregularities with the common law's favourable attitude towards children's privacy, and Fearn's similarities to anti-harassment legislation. Overall, the article concludes that although Fearn was imperfect in its treatment of physical privacy, it was a step in the right direction and contributed at least partially to filling the persistent lacuna in English privacy law.

This chapter explains how general principles of law in the UK are common law creations that apply ‘in context’. Context for these purposes can include sector-specific questions of law, where either statute law and/or the common law rules of fairness can impose procedural requirements that include notification rights, representation rights, and a duty to give reasons. The chapter also explains the relationship between statute law and common law and, in particular, how the common law can supplement statute law by filling gaps in procedural protection. Attention is given to the possible relevance of human rights standards, both at common law and under the ECHR, as it has effect in UK law under the Human Rights Act 1998. The residual influence of EU is also noted.

Widows, AIDs, Health and Human Rights in Africa: Case Study from Tanzania

Private Law and Local Custom

From Metaphor to Reality in Corporate 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.

The impact of the HRA on statute law appears at first glance to be relatively straightforward compared with its impact on the common law. In relation to statutes the HRA provides specific mechanisms for giving effect to Convention rights, so courts have not had to fashion their own methods under section 6 as they have done in common law cases. There are two mechanisms provided: courts have a duty to render statutes compatible with the Convention by interpretation ‘so far as it is possible to do so’ (section 3), and where interpretation fails they have the power to issue a declaration of incompatibility (section 4). Although declarations of incompatibility do not affect the validity of legislation, Parliament has generally responded by repealing or amending the statute in question. The HRA thus provides a relatively clear grounding for the constitutional role of the courts when Convention rights are invoked in cases involving statutes, unlike common law cases in which the courts have had to resolve this role for themselves to a greater extent. Important questions of judicial technique remain, however. The courts are fleshing out their constitutional role by developing new techniques of statutory interpretation in order to give effect to Convention rights, and by delineating the circumstances in which they will issue a declaration of incompatibility. These new techniques have brought far-reaching changes which are of interest to both public and private lawyers. Sir Jack Beatson has observed extracurially that section 3 ‘makes statutory provision more like common law doctrine’, due to the relative decline in importance of the statutory text and the increased importance of Convention case law in determining the interpretation that a court ultimately adopts. Beatson argues that this development may render statutes more ‘opaque’ to the ordinary litigant. These remarks raise important themes for this chapter, as they draw attention to the need for courts to strike a balance between the protection of Convention rights and the value of legal certainty when private legal relationships are conducted within a statutory framework. Parliament shares responsibility with the courts for maintaining this balance, as the legislature is expected to respond to declarations of incompatibility by enacting a new or revised statutory framework to provide for the Convention rights that have been affected; indeed, Parliament may also respond to section 3 interpretations by revising the statute. Dialogue of this kind between the courts and the legislature is an important aspect of the impact of the HRA on statute law. This chapter aims to provide an overview of the impact on statutes in private law cases. The chapter is in three parts: the first deals with questions of mapping and situates statute law in relation to other forms of private law affected by the HRA; the second considers the judicial approach to issuing declarations of incompatibility and the legislative response thereto; and the third examines the extent to which the courts have modified existing doctrines of statutory interpretation in order to give effect to Convention rights in cases between private parties.

PART I. THE LATE MIDDLE AGES: COINS AND THE LAW PART II. CIVIL LAW PART III. MONEY IN THE EARLY MODERN PERIOD: THE TRIUMPH OF NOMINALISM PART III. THE EVOLUTION OF CASHLESS PAYMENT: BANK MONEY PART IV. THE EIGHTEENTH AND NINETEENTH CENTURIES: THE EMERGENCE OF PAPER MONEY PART V. THE TWENTIETH CENTURY: FIAT MONEY

This is an edited version of an inaugural professorial lecture delivered at the Faculty of Law, Te Herenga Waka – Victoria University of Wellington on 16 March 2021 (the promotion to professor having taken place on 1 January 2019). In the address, Professor Moreham asked what the development of new torts of privacy over the last two decades has told us about the way in which common law both shapes and responds to changing societal values. Reflecting on her own experience ''growing up with'' the privacy torts, Professor Moreham considered the role of the legal academic in common law development and showed how conversations between the common law and the society it serves enrich both parties to it.

Synthetic Common Law