THE SUFFRAGETTE MOVEMENT AND CIVIL LIBERTIES

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

The article examines certain problems of the formation history of Canadian constitutionalism through the prism of the analysis of the prerequisites for the adoption and content of the Canadian Constitutional Act of 1982 and determines its place and influence in the world system of knowledge of a political and legal nature. As it is known, the constitution (from the Latin constitutio — establishment, system, order) is the main state document (law) that defines the state system, the order and principles of functioning of the representative, executive and judicial authorities, the electoral system, rights and obligations of a state, society and citizens. Usually, other laws of a particular state are based on the constitution. In addition, every modern written constitution grants specific powers to the organizations and public institutions established on the primary basis of compliance with the limitations of such a constitution. In most, but not all, modern states, the constitution takes precedence over the common law. Constitutions apply to a variety of levels, from sovereign states to the corporations and societies. An international treaty establishing international organizations is also their constitution in the scope that it defines how that organization is formed. For a state, whether sovereign or the subject of a federation, the constitution defines the principles on which the state is based and the order by which and who has the right to make laws. Some constitutions, especially codified ones, also act as restraints on the state power by establishing boundaries that state leaders cannot cross, i.e. fundamental rights. It is noted that today Canada is a constitutional monarchy, the head of state of which is the King or Queen of Great Britain. Canada officially belongs to the so-called «strong federations», in which parts of the federation have significant rights and responsibilities, some of the decisions of the central government shall be carried out by the provinces, but their activities are regulated by a series of agreements and laws, and disputes are often resolved by judicial authorities. All of Canada's provinces have unicameral parliaments and generally follow the same rules as the lower house of Canada's federal parliament. Considerable attention is paid to the fact that the Canadian constitution is the legal basis of the state and consists of both written text and unwritten traditions and agreements. The Constitution also includes the Canadian Charter of Rights and Freedoms, which guarantees basic rights and freedoms to citizens. In Canada, the constitution refers to a compilation of acts, British laws, court decisions, etc. The two main documents are the British North America Act of 1867, which declared Canada a dominion of Great Britain, and the 1982 act, which established that all laws passed in Canada did not require formal confirmation by the British Parliament.

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 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.

Many jurisprudential researchers have developed generalized theories but these theories have seldom been subject to empirical verification. Theoretical jurists also make assumptions and conjectures as to why and how the law functions and how the law should function based on observations and historical analysis. Each of their theses is usually biased towards the economic, social, political and religious environment of a particular era, and it may appear appropriate for that era. In the absence of verification based on scientific methods, these theses are merely conjectures which cannot be proved, and are often difficult to measure objectively. The use of information technology and statistical techniques should alleviate some of these problems. The reception of the Common Law in Hong Kong and Singapore and the successful adoption of the German Civil Code in Japan are evidence of supranational adaptability. The experiences of Hong Kong and Singapore can provide some useful information and data in analyzing the degree of success of the application of the Common Law in a different cultural setting. As schools of jurisprudence seldom explain the outcome of transplanting a dominant legal system to a society whose culture is foreign to it, it is submitted that information technology and statistical techniques can provide a better solution. This thesis consists of nine chapters. The first three chapters provide the cultural, historical and jurisprudential background relevant to the investigation of the application of English Common Law in contemporary Hong Kong. It is believed that an understanding of the cultural and historical past is the key to contemporary issues. The writer does not hold himself out as an expert in traditional Chinese jurisprudence and legal history, nor of Chinese law and custom in Hong Kong. Much of the information presented in the first three chapters was derived from published works. Chapters IV and V discuss the methodology in investigating the acceptance of the Common Law judicial system in Hong Kong, and Chapters VI and VII analyse the results of the investigations. The confidence of the people in the Common Law judicial system is directly correlated to the degree of success of transplanting a Common Law culture into Hong Kong as a dominant legal culture. Using selected methodologies, empirical data is analysed to determine the attitudes and values of the people towards the Common Law judicial system in Hong Kong. For the Common Law judicial system to be successfully maintained in Hong Kong after it becomes a special administrative region of the People's Republic of China on 1st July, 1997, the confidence of the Chinese population in its fairness and reasonableness is vital. Chapters VIII and IX are concerned with the future of the Common Law judicial system in Hong Kong after 30th June, 1997, and the recommendations for judicial development in the meantime. As this is a law thesis, the writer does not attempt to forecast the political developments of Hong Kong at that time, but relies on published works based on well established forecasting techniques. The law is stated as at 31st December, 1988.

The field of comparative administrative law has developed less extensively than comparative constitutional law. While it is experiencing a recent growth in interest, there remain gaps in the depth and extent of study, especially across common law systems. This Chapter evaluates common law studies to date, with a view to highlighting the relatively small catchment of common law systems in those studies, with the focus typically being on key Anglo-American systems. As common law systems increasingly diversify, there is much to be gained in exploring the diversity of common law approaches to administrative law. The comparative conversation will be assisted with input from a broader range of common law jurisdictions, especially those outside the traditional focus of comparative administrative law, in particular systems from Asia. This Chapter proposes that one avenue to do this is to compare the origins and adaptations of English law principles of judicial review across common law systems that traditionally imported, or were modelled on, English law. Such a conversation will help develop a much more robust understanding of different approaches to judicial review that is not skewed towards an English or ‘Westminster- system’-based understandings. This is the ambition of this Volume. This is especially for the benefit of ‘newer’ common law jurisdictions that are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. This more refined understanding of ‘common law’ approaches to judicial review will also provide a better launch pad for studies of common law versus civil law systems, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics.

IN RECENT YEARS much has been written of the social, political and economic status of teachers in western society. Conversely, little attention has been given to the study of the legal personality of teachers across national lines, which suggests that the subject deserves the consideration of students of comparative education. To that end, this article examines the legal status of teachers in France and England as shaped and defined by their respective law systems. For purposes of definition, the legal status of teachers represents the sum of their rights, duties, privileges and immunities, all of which have evolved from a variety of legal sources, both written and unwritten. Broadly speaking, two great law traditions are at work in the western world: codified law and common law. France and French-speaking lands, and to a lesser extent her Continental neighbours, may be classified as codified law nations; while England and most English-speaking states qualify as common law countries. Codified law nations emphasize the written law as expressed in codes, constitutions and statutes, the bulk of which originates from legislative authorities. Common law nations pay respect to the unwritten law as reflected in the customs and traditions of society, much of which is formally recorded in case law as created by judicial authorities. Viewed philosophically, the English law tradition displays a Baconian and Lockian spirit: Baconian because legal realities are arrived at inductively and Lockian because it combines the elements of empiricism and evolution. Not having a written constitution or code of law like France, her legal development has been inspired more by unwritten than by written sources. The essence of common law is that it represents a set of customs and traditions that has won favour and acceptance over a span of time. The codified law tradition of France, on the other hand, is revolutionary in outlook and Cartesian in spirit. Whereas English law is deeply attached to history, French law represents, at least in design, a fresh start in law building, unspoiled by custom and usage. The establishment of the Napoleonic Code during the first decade of the nineteenth century and the reality of five Republics, each with its own constitution, testify to the French tendency of constructing new legal and political structures, without formal reference to the past. In Cartesian terms codified law is a body of written principles from which specific rules of action may be derived. An interesting point is that English empiricism and French rationalism are values underlying education as well as law. The Cartesian love of good order and rational design are reflected in France's pyramidal educational structure and in her recent commitment to undertake educational planning on a grand scale. Moreover, the revolutionary pattern of creating institutions anew without regard to history is as true for French education as it is for French law. For example, the grande ecole and the lycee are, respectively, products of the Revolution and the Napoleonic era. Still another example of the pervasive

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.

English law has time and again denounced the existence of an overriding principle of good faith in its jurisdiction. Contrary to its civil law counterparts in Europe that embrace the general principle of good faith, it has chosen only to apply good faith in a piecemeal fashion and for specific areas. It asserts that the general principle of good faith is totally repugnant to the fundamentals of its legal system that favors creating incremental and specific solutions to legal issues, that adheres to the legal principle of party autonomy and holds sacred legal certainty. It is adamant that it does not need a general principle of good faith for it has its own homegrown rules to ensure that justice, fairness and reasonableness prevails in its legal system. In the recent years, the unwavering position of English law against good faith is continuously being tested. For one, the duty of good faith has found its way into English law via various European Union harmonisation instruments such as The Commercial Agents (Council Directive) Regulations 1993 implementing Council Directive 86/653/EEC and The Unfair Terms in Consumer Contracts Regulation 1999 implementing Council Directive 93/13/EEC, and with more harmonisation efforts expected in the near future with current talks of a European Sales Code and the presence of Principles of European Contract Law by the Lando Commission. For another, the current economy has already shifted from a domestic concern into a global one. Consequently, contracts at this day and age cease to be a national affair. This means that the good faith principle, which exists in most countries with civil and mixed legal systems making up the majority of not only European countries but the rest of the world, will continuously govern or form part of many contracts touching English law whether it likes it or not.Moreover, the growing acceptance of the principle of good faith in other common law countries has attracted many writings by English law scholars in the recent years and this has also inspired recent English court decisions to give good faith a second look or even impute it in contractual obligations. In fact, Longmore LJ expressed his sentiment to reconsider the House of Lords’ dictum in Walford v. Miles citing Lord Steyn who criticised such narrow approach. Lord Steyn even stated that the principle of good faith is not a world of difference from English law’s doctrine of reasonable expectations of the parties and that duties of good faith, when imposed on the parties, can easily be accommodated by English law. Some authors suggest that English law’s often resort to the implication of terms and other legal doctrines that give more emphasis to party loyalty, the protection of reliance, cooperation, consideration of the other party’s interest, and substantive fairness, signals its movement away from the will theory and thus ready to revive the ethical foundations of contract law existing before the 19th century. With all the foregoing developments on the principle of good faith in English law and its continuous growing influence, it is time to revisit whether English law’s open denunciation of a general principle of good faith remains true today. English law is described to be a dynamic legal system which always transforms to meet the needs of the times and to create conditions conducive for growth and development. Given the current global economy, the need to adapt to the European and global dimension of contract law carrying more complex transactions and relationships which renders the old and simple system of English contract law no longer sufficient to determine the parties’ intricate contractual obligations and their manner of performance, is English law now ready to abandon its headstrong position that it does not accept the general duty of good faith and is in fact heading towards this direction in contract law? The objective of this work is to answer this question by comparing the treatment and the level of acceptance of good faith in prominent European civil law systems, common law systems and of course, in English law. It will take into account recent developments in English law and with these, benchmark the current level of acceptance of good faith by English law and determine whether it is going towards a general principle or not.

This article, written by Teresa M. Miguel-Stearns, explores the vast differences in judicial authority not only between the common law and civil law traditions, but also among various countries steeped in the civil law tradition in Latin America. Judicial review,certiorari, precedent, and other functions and characteristics of the judiciaries of five distinctly different countries (Argentina, Bolivia, Brazil, Chile, and Mexico) are compared and contrasted with each other and with the common law tradition. This evaluation demonstrates that despite their, arguably, similar distant histories and legal foundations, each country has evolved into a unique legal system with significant differences in the treatment of the judiciary and its jurisprudence.

Generally subrogation, as a doctrine, is recognised in the insurance theory, which is adopted in all domestic laws around the world whether they belong to ‘common law’ or ‘civil law’ system. Domestic laws have approached this doctrine with different views. In Jordan as one of civil law countries, this doctrine is adopted in civil law, and the contents of this law have been applied differently by the Jordanian courts. As a result, many consequences can be drawn as rules which govern the subrogation doctrine in civil law countries. England as one of the common law countries, the hint of subrogation doctrine was seen earlier in Colonia v Amoco . The assurer is subrogated to all the rights and remedies of the assured in and in respect of the subject matter as from the time of the casualty causing the loss. This article offers insight into the complex relationships involved in subrogation in insurance contract, and considers whether, within this environment, legal or judicial authorities can improve this doctrine while protecting the interest of the insurer and the assured.

This chapter examines the extent to which, and the ways in which, British constitutional law protects various aspects of personal liberty – of what may be called ‘civil liberties’. This is a very large topic, as well as being a critically important one, and we have had to be selective. In our selections we have tried to focus on issues that are both topical in early twenty-first-century Britain and representative of the overall field. We start with a survey of the relevant sources of law. In the next section we move on to examine the regime of Convention rights that was introduced into UK law by the Human Rights Act. In doing so we pay particular attention to the impact of Convention rights in areas touching upon matters of national security and counter-terrorism. This section may be read as a case study of the way in which the HRA has worked thus far. The chapter closes with two further case studies of the way in which liberty is protected in Britain. These case studies, concerning freedom of expression and freedom of assembly, consider both common law and statute and seek to place the HRA in the context of an analysis of the overall strengths and limitations of the constitutional protections of liberty in Britain. If one thing is clear, it is that, while the Human Rights Act is undoubtedly significant, it should not be the sole focus of our attention, even in this area of constitutional law.

The aim of the article is to analyse whether villain under the English common law was legally the same category as slave under the Roman law. Perhaps at fi rst sight a remarkable notion, such conclusion could be theoretically justifi ed by the evident reception of Roman law in a major medieval book of authority De Legibus et Consuetudinibus Angliae by Bracton. With regard to the personal status Bracton uses terms found in the Roman law codifi cation of Justinian. To examine the question, the article from the methodological perspective compares the terminology, modes of acquiring and loosing the servile status and the legal capacity of slaves and villains. In its second part the article examines the judicial proceedings subject matter of which is the determination of disputed status libertatis. Since both the Roman and the common law system are systems built on remedies rather than substantive rights, principally the Roman controversia de libertate and the English writ de native habendo as the respective forms of action are examined.

This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a slowly-changing, historically-binding tradition; the custom view sees the authority of the common law as derived from its correspondence to contemporaneous norms and values; and the will view sees the authority of the common law (like that of all other law) as derived from the acts of a sovereign. These competing views imply different answers to various questions (such as the relationship between statutes and the common law, or the role of judges in the legal system). They also lead to very different attitudes towards the idea of a single, supranational common law: generally speaking, the first two approaches are more sympathetic to common law convergence than the latter two. I argue that these days English common law is close to the second, practice-based, conception of common law authority, whereas American law adopts a combination of the third and fourth conceptions. This explains why American common law is largely uninterested in maintaining commonality with other common law jurisdictions, as well as many other differences between American and English common law.

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.