English Law Research Articles

From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture

From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture

Back to the Future: Revisiting the ‘Organisation Test’ as a Criterion of Employment

The article addresses the issue of disguised employment in today’s economy where, despite a proliferation of new forms of work, the right to statutory labour rights remains dependent on employment status. It examines the origin of the prevailing dominant impression test in Smit v Workmen’s Compensation Commissioner, noting the court’s preoccupation with returning South African law to its Roman-Dutch roots and its rejection, on flimsy legal grounds, of the organisation test as an alien institution of English law. It was thereafter sidelined for decades and, although it has been recognised in recent labour legislation and acknowledged in recent case law, it has not been applied or developed to a significant extent. Noting that the Smit judgment is not aligned with constitutional values, the article argues that employment protection should apply to everyone who regularly works for (the business of) another and that the organisation test offers a crucial indicator of employment status that resonates with constitutional principles. It further suggests that international precedent, such as the ‘ABC’ standard incorporated in the California Labor Code, can be drawn on in developing the organisation test in the South African context.

Back to the Future: Revisiting the ‘Organisation Test’ as a Criterion of Employment

The article addresses the issue of disguised employment in today’s economy where, despite a proliferation of new forms of work, the right to statutory labour rights remains dependent on employment status. It examines the origin of the prevailing dominant impression test in Smit v Workmen’s Compensation Commissioner, noting the court’s preoccupation with returning South African law to its Roman-Dutch roots and its rejection, on flimsy legal grounds, of the organisation test as an alien institution of English law. It was thereafter sidelined for decades and, although it has been recognised in recent labour legislation and acknowledged in recent case law, it has not been applied or developed to a significant extent. Noting that the Smit judgment is not aligned with constitutional values, the article argues that employment protection should apply to everyone who regularly works for (the business of) another and that the organisation test offers a crucial indicator of employment status that resonates with constitutional principles. It further suggests that international precedent, such as the ‘ABC’ standard incorporated in the California Labor Code, can be drawn on in developing the organisation test in the South African context.

Canadian Law Between the Wars

Examined through a legal prism, Canada is an officially bilingual federal state with a bi-juridical legal system based, for the most part, on the traditions of British common law as it has evolved over the years. But in Quebec, the private law is civil law, contained in a Civil Code, derived from the laws established in what was New France. Canadian public law is essentially British. The current Head of State is King Charles III, Head of the Commonwealth. Canada’s constitution sets forth, inter alia, the jurisdictional competence of the federal government and that of the provinces and territories. Over the course of the more than 150 years since Confederation, the respective governments have engaged in much litigation, testing the limits of their respective legislative powers. Beginning in the early years of the twentieth century, an increasing volume of legislation developed as Canada progressed from its colonial status to a fully autonomous state with full control of both its domestic and foreign affairs. The scope and volume of legislation increased substantially in the lead-up to the Second World War (and thereafter) as governments, in their respective spheres, sought to create a legal environment that was attentive to a broader range of social issues. The existence of a federal state complicated the development and enactment of policies that produce the same outcomes throughout the country, since the constitution confers legislative jurisdiction on the provinces regarding property and civil rights. Much effort is expended in intergovernmental negotiations, leading to achievement of substantially harmonised results.

Israel – In Search of Constitutional Common Sense

The Israeli radical judicial overhaul program, aiming to seriously weaken the judiciary, has led the country to the brink of chaos and violence, with hundreds of thousands of demonstrators in the streets, society tearing itself apart and numerous sectors of society, such as medical service or reservists of IDF, announcing a suspension of their service to a nation they fear will no longer be a democracy. Despite the strong social protest, Knesset – representing an extremely right-wing coalition – adopted on the July 24, 2023 the amendment to Basic Law: The Judiciary to bar the judiciary from striking down decisions of the government and its ministers on the grounds of such decisions being unreasonable. The measure known as the reasonableness clause (standard) is rooted in English and American case law and it is frequently used in Israel to control administrative activity. It allows the courts to strike down governmental and administrative decisions and their regulations seen as having not taken into account all the relevant considerations of a particular issue, or not given the correct weight to those considerations – even if they do not violate any particular law or administrative rulings. The current right-wing coalition, led by Benjamin Netanyahu, argues that the clause as it stands gives too much power to the judiciary, especially the Supreme Court sitting as a High Court of Justice, to interfere with the actions of the executive, and that the powers of judges, who are not elected by the public, remain out of control in this procedure. Opponents of the government’s amendment argue that this standard is crucial in helping to protect civil rights that are not fully defined in Israeli law. Eliminating the standard of reasonableness will be another step towards giving the government unlimited power. It violates not only the separation of powers principle and the rule of law but it also harms the right to good administration. Irrespective of the Supreme Court’s decision on the constitutionality of the government’s amendment, the struggle to maintain the democratic principles of the Israeli system will continue. Despite the strong social protest, Knesset – representing extremely right-wing coalition –adopted on the 24th of July 2023 the amendment to Basic Law: Judiciary to bar the judiciary from striking down decisions of the government and its ministers on the basis of being unreasonable. The measure known as the reasonableness clause (standard) is rooted in English and American case law bless and it is frequently used in Israel to control the administrative activity. It allows the courts to strike down governmental and administrative decisions and their regulations seen as having not taken into account all the relevant considerations of a particular issue, or not given the correct weight to those considerations – even if they do not violate and particular law or administrative rulings. The current right-wing coalition, led by Beniamin Netanyahu, argues that the clause as it stands gives too much scope to the judiciary, especially the Supreme Court sitting as a High Court of Justice, to interfere with the actions of the executive, and that the powers of judges, who are not elected by the public, remain out of control in this procedure. Opponents to the government’s amendment argue that this standard is crucial in helping to protect civil rights that are not fully defined in Israeli law. Eliminating the standard of reasonableness will be another step towards giving the government unlimited power. It violates not only the separation of powers principle and rule of law but it also harms the right to good administration. Irrespectively of the Supreme Court's decision on the constitutionality of the government's amendment, the struggle to maintain the democratic principles of the Israeli system will continue.

The stunted development of unfair competition law in the United States and Canada

Abstract Both the United States and Canada present unfair competition law in a way that is complex and indicative of their kindred beginnings. Sharing a closely paralleled history in the development of unfair competition law, these countries exhibit unique similarities in both substance and approach, likely not found in any other jurisdiction. Born out of English common law, the early trajectory of unfair competition was inextricably linked to trade mark law. Both countries’ legislatures passed ambitious trade mark statutes that created federal regulation of certain areas of unfair competition, while also reserving large areas for the state or provincial legislatures to regulate. Claimants therefore navigate substantial variety in unfair competition protections depending on the cause of action. Even so, obligations under international agreements such as the Paris Convention and interaction with other bodies of law further extend the unfair competition legal landscape. Despite its complexity, the United States and Canada share remarkably similar paths to unfair competition protection. Understanding their history, limited national legislative powers, policy rationales, obligations under international agreements and the interplay between federal and state or provincial law create a rich and multifaceted unfair competition landscape.

The Gift in the English Law/ An Analytical Comparative Study with the Iraqi Civil Law

تعد الهبة في القانون الإنكليزي تصرفاً قانونياً إرادياً غير تعاقدي ينقل ملكية الشيء الموهوب من الواهب إلى الموهوب له دون مقابل أو على سبيل التبرع. إن إفتقار الهبة إلى متطلب أو شرط المقابل هو السبب في عدم تصنيفها ضمن نطاق العقد. وتصنف الهبة في القانون الانكليزي الى نوعين: الأول هو الهبة بين الأحياء, والثاني الهبة بسبب توقع الموت, وتسري الهبة بين الأحياء على المنقول والعقار على حد سواء, خلافاً للهبة بسبب توقع الموت, التي تسري على المنقول فقط من دون العقار. وبالمقابل فقد نظم القانون المدني العراقي رقم (40) لسنة 1951 الهبة وعدها عقداً من العقود المسماة, التي تنعقد إما بعوض أو بدون عوض. وترتب العديد من الآثار القانونية.

Legal Debates on ‘Ex Officio’ Procedure in Late 16th Century England: Robert Bill’s Position

The article examines the origins of the modern right to remain silent and not testify against oneself, which was established in legal discussions among English jurists in the sixteenth century and in the practice of English courts in the seventeenth century. The aim of the article is to analyze the conflict between common and civil law jurists in the late sixteenth century regarding the procedure of ex officio oath-taking, that is, taking an oath due to the prosecutor’s official position. The legal context of the 1580s-1590s, when there was a dispute over the activities of the High Commission, is reviewed. The legal texts under consideration demonstrate a struggle between inquisitorial practices and attempts to make the judicial process (including the church) “properly organized.” Special attention is paid to the position of Robert Bill, a clerk of the Privy Council. The author delves into the arguments Bill presents against ex officio oaths. The analysis of the legal debate allows for a broader understanding of several conflicts: the relationship between church and common law in England after the Reformation and the balance of power between authorities and subjects’ rights.

Preventing unfair competition in Australia, New Zealand and South Pacific countries: the intertwined roles of passing off and consumer protection statutes

Abstract Australia, New Zealand and other South Pacific countries whose laws are based on English law tend to rely on a patchwork of intellectual property statutes, equitable doctrines and common law actions to prevent acts of unfair competition. The most distinctive feature of the laws of these countries is their reliance on consumer protection statutes that contain broadly worded prohibitions on parties engaging in misleading or deceptive conduct in trade or commerce, in addition to the tort of passing off, to safeguard against unfair competition. This article traces the complex relationship between passing off and consumer protection statutes in Australia, New Zealand and throughout the South Pacific. It shows how the actions have come to have a largely mixed or merged operation that seeks to balance interests in protecting trading reputation, in ensuring that consumers are not deceived, and in leaving space for competitors, especially given the limits of intellectual property statutes and other doctrines. It does so in the course of providing a detailed explanation of how Australia, New Zealand and other countries in the region give effect to their obligations under Article 10bis of the Paris Convention.

Translation methods applied to translate Polish types and names of administrative law authority bodies into English – a case study.

The paper aims to discuss Polish terms that name authority bodies under the administrative law and their English equivalents. The Polish terms under analysis appear in the first Division of the Polish Code of Administrative Procedure of 14 June 1960 and the English equivalents of each Polish term researched have been suggested in the Polish Code of Administrative Procedure translation into English. The research problem is to determine the translation methods applied and to verify whether translation methods used in the Polish-English translation of the above terms which have been determined as culture-specific items appear among translation methods applied when translating culture-specific elements suggested by Hejwowski (2007). Furthermore, to verify whether the mentioned translation methods appear among the translation methods discussed by Weston (1993) which are recommended to be applied while translating legal terms. The theoretical part of the paper includes a presentation of the definitions of a legal term, culture-specific item and the classification of translation methods by Hejwowski and Weston. The research stages include the comparison of definitions of source elements and definitions of their equivalents, as long as they appear in monolingual English law dictionaries.

Wandering abroad: British law, Irish independence, and Beckett’s vagrants

If there is something approximating a Beckettian social type it is doubtless the vagrant or tramp, those ostensibly idle and disorderly individuals. But too often (and for far too long) these figures have been understood only in terms of a metaphysical or metaphorized “homelessness”, as exemplars of existential despair, psychoanalytic banishment, modernist alienation or even a precondition of the posthuman condition articulated in his later work. This essay instead locates these figures in relation to the legal legacy of colonialism in post-independence Ireland, precisely to demonstrate how Beckett’s writing relates to this discourse. Most relevant in this regard is Section 4 of the 1824 Vagrancy Act passed by the Westminster Parliament – and still in force during the Irish Free State era – which indicates that the following classes of people shall be deemed “rogues and vagabonds”: “every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon, not having any visible means of subsistence and not giving a good account of himself or herself”. In all its particulars, the definition closely applies to the many vagrants found in Beckett’s fiction and drama, especially the narrators of his four nouvelles, whose very existence seems to be at odds with the legal ideology of the post-independence state. Acknowledging this legal legacy is key to recognizing the political significance of contradiction, aporia, and misunderstanding in Beckett’s writing, which disrupts the authority of such discourses (taken to be non-contradictory, systematic, and self-evident) not just to assert and maintain legal identities, but to separate some individuals from the ranks of legitimate subjects of the bourgeois nation-state.

SHAREHOLDERS’ AGREEMENTS AND UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS

The article examines the issue of the foreign law as an applicable law of shareholders’ agreement at companies established under the laws of Ukraine. The emergence of shareholders’ agreement in the legal system of Ukraine, as well as the changes that have taken place during the last decades regarding the possibility of applying foreign law to contractual corporate relations, have been studied. Because of authority of English common law among Ukrainian legal practitioners, there is an attitude among them to choose it as the foreign law that will be applied to shareholders’ agreement. At the same time, there are significant differences in the basic principles of common law and continental legal family, which includes the legal system of Ukraine. On the other hand, the law of Ukraine will remain the applicable law for the rest of corporate relations in the relevant companies insofar as it is its lex societatis (i.e. everything with except of obligations of the parties to the shareholders’ agreement). Taking into account all the above, a conclusion was made to introduce a document equidistant from both legal systems and able to ensure a high quality regulation of general issues of contract law, namely the UNIDROIT Principles of International Commercial Contracts, among instruments providing regulation of relations under shareholders’ agreement. It is proposed to use one of the standard UNIDROIT clauses in order to determine the hierarchy between the provisions of foreign national law and the UNIDROIT Principles, as well as their correlation with the provisions of the shareholders’ agreement itself. It was also concluded that the UNIDROIT Principles might be applied to shareholders’ agreement even in the absence of a foreign element to establish a regulation of a contractual relations at the level of the best international standards.

Disseminating legal information on online law forums in English and Italian

The advent of the Internet has had a significant impact on the transfer of specialised knowledge from experts to non-experts. Over the years, the way in which digital tools such as blogs, forums and websites have been conveying information has had a strong impact on people’s understanding of specialised knowledge: popularisation thus functions as a tool for the “empowerment” of the lay people (Bondi et al., 2019, p. 2). The focus of the present paper is on legal knowledge communication from expert to non-expert online from a cross-cultural perspective. The aim is to investigate the linguistic-discursive strategies deployed by English and Italian law professionals providing legal advice to lay people on online law forums. The contribution of online law forums to legal knowledge dissemination has received scholarly attention in English. Relevant research across languages is still lacking. This paper attempts to help fill this gap, by illustrating and comparing the ways legal information is given on the UK LegalExpert and Italian La Legge per Tutti forums. Adopting a discourse analytical approach, the analysis shows that both British and Italian legal experts give advice using a variety of strategies, ranging from impersonal explanatory to interpersonal and communicative practices. The paper attempts to provide further insights into effective computer-mediated legal discourse for legal professionals and language scholars alike.

Civil Recourse Against Food Traders Causing Food Poisoning in Malaysia – Proposals for Reforms

Under the current legal regime, the only civil recourse against food traders causing food poisoning to consumers in Malaysia is through civil action under tort of negligence. A civil action is not straightforward and often fraught with difficulties. Hence, the objectives of this paper are twofold. Firstly, to examine the application of the tort of negligence in civil liability cases against food traders who cause food poisoning; and secondly, to explore alternative approaches that could be introduced to safeguard the legal rights to compensation of aggrieved consumers and/or dependants of deceased consumers. This paper employs a pure doctrinal research method where the relevant food safety legislations and relevant English case laws together with the secondary sources such as textbooks, journals articles, statistics reports, press reports, relevant online databases, and websites are referred to. This paper concludes that the only civil recourse available is by commencing a civil action under tort of negligence against food traders. In addition, it is also found that relevant food safety legislations only empower enforcement authorities to take legal action against food traders but they will not act on behalf of aggrieved consumers who suffered from food poisoning and/or dependants of deceased consumers who died from food poisoning. This paper, thus, proposes reforms by way of amendments to the Food Act 1983.

Self-employment in UK law

The United Kingdom has noted a rapid increase in the number of self-employed persons in the last forty years. This has prompted a return to the debate on the regulation of this category of workers. What are the key characteristics of the self-employed? Are they covered by labour law and social security regulations? This chapter answers these questions by looking at the legal framework applicable to the self-employed in the UK. In section 2, the author characterizes the main tendencies regarding self-employed activity in the United Kingdom as presented in a report of the Office of National Statistics for 2020. In sections 3 and 4, she analyses the definition and the legal framework that guarantee protection applicable to the self-employed. The author places particular emphasis on the tri-partite character of the British legal system in individual employment law, which includes certain categories of self-employed in the British definition of worker. Finally, section 5 is devoted to the ever more popular phenomenon of “bogus self-employment” and the legal mechanisms designed to combat it.

State-Sponsored Abduction to Enforce British Law for Aotearoa New Zealand Pre-Annexation

State-Sponsored Abduction to Enforce British Law for Aotearoa New Zealand Pre-Annexation

A hagyomány fogalma a huszadik századi filozófiában. Eliot, Scruton, Gadamer

In an effort to give an idea of the 20th century efforts to place the concept of tradition within philosophy, this essay reconstructs three different views on it. This is done in order to show that, although we tend to think of the century as a period of progressive advance, there was in fact a very conscious philosophical effort to consolidate and reinterpret tradition. In his literary criticism, and in particular in his essay entitled Tradition and the Individual Talent T. S. Eliot embodies a form of modernism, which does not negate the idea of a reliance on tradition. On the contrary, he tries to show that the idea of literary innovation and the genuine novelty of the genius is unimaginable without a constant reference to a canon, which is in need of reformation. The analytical philosopher, Roger Scruton connects the understanding of tradition as a guarantee of innovation as revealed by Eliot with his own thoughts of the adaptability of the tradition-based English common law, with its commonsense approach of problem-solving. Finally, the paper offers an interpretation of Gadamer’s account of prejudice, tradition, authority and application, in his own context of hermeneutics understood as a rehabilitation of tradition, as well as a very articulate choice of political and philosophical values and way of character-formation.

Small and state‐funded: An empirical study of liquidations in Scotland

AbstractThere is significant scope for empirical research in the field of corporate insolvency law. This paper seeks to make a valuable contribution to this field of research. It features analysis of data regarding all insolvent liquidations in Scotland that had their end point within a period of a year, specifically 1 October 2019‐30 September 2020 (even if the liquidations commenced prior to that period). A dataset was compiled using information from final accounts documentation for liquidations available from the UK's companies register. Following the introduction, the paper provides background and context for corporate insolvency in Scotland, with particular reference to liquidation and the rules relating to creditors. The section also includes comparisons with the law of England and Wales. The paper then moves on to discuss the empirical methodology adopted and how the relevant data was obtained. This is followed by results and analysis focused on: the asset values of companies in the study, the lifespan of those companies, the timespan of their liquidations, the levels of liquidation expenses, the recoveries of creditors (including secured, preferential and ordinary unsecured creditors), and the role of HMRC in liquidations, as a petitioner and in terms of paying liquidation expenses. The paper contains a number of significant findings regarding each of these matters. It supports the case for a streamlined liquidation procedure for smaller companies and for the introduction of an official receiver in Scotland (while also justifying the existence of the official receiver in England and Wales). Lastly, after the identification of some limitations regarding the analysed data, the paper highlights potential lines of further research building upon this study, including expanding the time periods examined, comparing the data for Scotland with data for other jurisdictions, most obviously England and Wales, and the consideration of corresponding data for other insolvency procedures.

Legal Consciousness and the Implementation of Equality and Human Rights Law in England and Wales

Legal Consciousness and the Implementation of Equality and Human Rights Law in England and Wales

Book Review: Beyond Exclusion in Medieval Ireland: Intersections of Ethnicity, Sex, and Society Under English Law by Stephen Hewer

Book Review: <i>Beyond Exclusion in Medieval Ireland: Intersections of Ethnicity, Sex, and Society Under English Law</i> by Stephen Hewer