English Law Research Articles

The implementation of national labour legislation in England after the Black Death, 1349–1400

AbstractThe responses of labour markets to global pandemics are attracting renewed interest, although the English labour laws in response to the Black Death of 1348/9 – capping wages, imposing annual contracts, and restricting mobility – have a long and established scholarship. The conventional wisdom is that the legislation represented an extension of existing local practices and created common cause among all categories of employer. Yet this view is hard to reconcile with the fact that, despite subsequent revisions, the legislation soon failed. These arguments are tested through original research into how the legislation was actually enforced in a variety of legal tribunals (manorial, borough, and royal). A clear distinction is maintained between public presentments and private litigation, and a robust methodology is pursued to record their absence as well as quantifying their presence. This casts new light on the novelty of the labour laws, the reasons for their failure, and their influence on contract law. The analysis exemplifies the potential for short‐term legal responses to infectious diseases to have unintended and unanticipated long‐term consequences.

Scottish parliamentarism and the Presiding Officer's certificate

ABSTRACT This article discusses the law, context, culture, and practice behind the Presiding Officer’s certificate in the Scottish Parliament. In doing so, it uncovers the importance of Westminster parliamentary culture in Scottish governance. The Presiding Officer’s certificate, which indicates whether the Presiding Officer believes that legislation is within the Scottish Parliament’s competence, sits uncomfortably with Scottish parliamentary culture. The certificate is similar to procedures in Nordic parliaments, but not Westminster-style parliaments. When this procedure came under pressure, the importance of Westminster parliamentarism in Holyrood became clear. The certificate is compared to the Commons Speaker’s role under English Votes for English Laws. Scotland is still learning to harmonise its institutions with its parliamentary culture.

SLAPPs: What are they? And how should defamation law be reformed to address them?

ABSTRACT This article examines the need for legislative reform to address the problem of strategic litigation against public participation (SLAPPs), with a focus on defamation law as the most common action for such claims. It draws upon legislative and judicial approaches from a range of different jurisdictions to define the problem of SLAPPs and examines whether the existing law in England and Wales provides an adequate solution to the problem of SLAPPs. This analysis indicates some important recent developments in the law that are relevant to SLAPPs but concludes that legislative reform is necessary to address the problem of SLAPPs. In contrast to the current proposals for reform, the article proposes an anti-SLAPP provision that crystallizes and builds upon recent developments in the law, to effectively address the problem of SLAPPs without posing an unnecessary risk of the denial of innocent claims.

Visualization as irritation: producing knowledge about medieval courts through uncertainty.

Visualizations are ubiquitous in data-driven research, serving as both tools for knowledge production and genuine means of knowledge communication. Despite criticisms targeting the alleged objectivity of visualizations in the digital humanities (DH) and reflections on how they may serve as representations of both scholarly perspective and uncertainty within the data analysis pipeline, there remains a notable scarcity of in-depth theoretical grounding for these assumptions in DH discussions. It is our understanding that only through theoretical foundations such as basic semiotic principles and perspectives on media modality one can fully assess the use and potential of visualizations for innovation in scholarly interpretation. We argue that visualizations have the capacity to "productively irritate" existing scholarly knowledge in a given research field. This does not just mean that visualizations depict patterns in datasets that seem not in line with prior research and thus stimulate deeper examination. Complementarily, "irritation" here consists of visualizations producing uncertainty about their own meaning-yet it is precisely this uncertainty in which the potential for greater insight lies. It stimulates questions about what is depicted and what is not. This turns out to be a valuable resource for scholarly interpretation, and one could argue that visualizing big data is particularly prolific in this sense, because due to their complexity researchers cannot interpret the data without visual representations. However, we argue that "productive irritation" can also happen below the level of big data. We see this potential rooted in the genuinely semiotic and semantic properties of visual media, which studies in multimodality and specifically in the field of Bildlinguistik have carved out: a visualization's holistic overview of data patterns is juxtaposed to its semantic vagueness, which gives way to deep interpretations and multiple perspectives on that data. We elucidate this potential using examples from medieval English legal history. Visualizations of data relating to legal functions and social constellations of various people in court offer surprising insights that can lead to new knowledge through "productive irritation."

‘Ambrosio’ Taylor Coleridge: Investigating Three Issues in Banning The Monk

This paper investigates the banning in 1897 of Matthew Lewis's novel The Monk, taking special interest in the dismissal of the text by Samuel Taylor Coleridge. Sources reveal how British decency laws and the French Revolution together create a public repression which the Gothic novel both threatens and relieves in the 1890s. By highlighting journalistic reliance on Gothic terminology, the paper argues that banning art to protect citizenry is often a result of public insecurity rather than immoral content.

Evolution of the Concept of Punitive Damages in Takaful Insurance in the Kingdom of Saudi Arabia: Lessons Learned from British Common Law

Evolution of the Concept of Punitive Damages in Takaful Insurance in the Kingdom of Saudi Arabia: Lessons Learned from British Common Law

Policy and law: the case of synthetic nitrogen fertilizer

Agriculture occupies more than a third of the world’s land with many, large-scale impacts on the environment and human health. This article investigates the failure of policy to manage these impacts, asks whether private law can fill the gap, and what this means for policymakers. The investigation takes the form of a case study of synthetic nitrogen fertilizer (SNF) in English policy and law. The SNF industry has been chosen because, by its own account, it underpins the modern food system, which is recognized as needing urgent transformation. The article first assesses the damage caused by SNF to health and the environment and the potential legal remedies. It then assesses industry claims that SNF (a) provides food security, (b) is beneficial to soil and water, and (c) reduces greenhouse gas emissions. If misleading, these representations could amount to unlawful ‘greenwashing’. While private law can never replace good policy and regulation, the article concludes that there is evidence to enable private law to supplement policy, and that this role is made possible as well as necessary by the absence of effective regulation and enforcement. Private litigation could catalyze policymakers to implement the robust regulatory regime that agriculture demands. As the law must focus on scientific evidence and causation, it can also help elucidate and publicize the science on which policy is based. Finally, because of the strict constraints within which private litigation must operate, it can direct policymakers towards strategic interventions (or tipping points) that could catalyze systemic change.

Trusts and Trust Law in Thailand

Abstract Trusts in Thailand trace back to the late 19th century, influenced by the Bowring Treaty of 1855. Initially under English common law, the Thai Civil and Commercial Code of 1935 restricted the establishment of trusts. However, regulations evolved, with the Securities and Exchange Commission (SEC) proposing legislation in 2007 to facilitate trust transactions, particularly REITs and Infrastructure Trusts. Governed by Section 1686 of the Civil and Commercial Code and SEC regulations, REITs and Infrastructure Trusts cater to real estate and infrastructure investments. Despite past constraints, Thailand’s trust landscape now emphasizes regulatory frameworks for transparency, investor protection, and market competitiveness, potentially opening to private investors.

Legal parenthood in surrogacy: shifting the focus to the surrogate’s negative intention

ABSTRACT This paper examines how legal parenthood should be allocated in surrogacy under English law. I argue that we need to shift the focus of the discussion to the surrogate’s negative intention to not be a parent as the key to move away from the current gestational model of motherhood. This has three main benefits that are explored in this paper. First, it respects surrogates’ voices and construes them in terms of their autonomy and agency, rather than solely in terms of their vulnerability. Second, it provides a conceptually robust basis for recognising legal parenthood of the intended parents at birth, since the surrogate’s negative intention is construed as the trigger for the application of specialised rules on parenthood. Third, it serves as a guiding principle in developing appropriate and comprehensive protections for the surrogate, including recognising the intended parents as the legal parents at birth, the parameters of the surrogate’s right to withdraw consent, and further safeguarding requirements and checks before entering into a surrogacy agreement. Overall, focusing on the surrogate’s negative intention allows us to view surrogacy in a nuanced way, away from false dichotomies, and contributes to a more compelling case in favour of actively facilitating surrogacy.

Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law

Abstract In English law, the trust's third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust's attractiveness in conducting commercial dealings, China has also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China's replication of the trust's third-party and bankruptcy effects has encountered doctrinal obstacles. Drawing upon the experience of its Northeast Asian forerunners, China has established two mechanisms to achieve the third-party and bankruptcy effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the process of transplanting the trust model into the Chinese legal context. Adopting a comparative law perspective, this article examines these mechanisms in the Chinese law setting for two reasons: first, to explore the mechanisms’ constituent elements and their operation, as well as the roles of both mechanisms in the Chinese trust law system; and second, to furnish comparative law scholarship with broader insights into rule transplantation and reconciliation.

Joint enterprise in England and Wales: why problems persist despite legal change

ABSTRACT The law in England and Wales (as in Australia and other jurisdictions) enables a person to be convicted of an offence committed by another using complicity liability, sometimes termed ‘joint enterprise’. In England and Wales, 'joint enterprise' has been widely criticised for: failing to distinguish between the moral and legal culpability of the person who commits the substantive offence and those on the periphery of it; being disproportionality applied in cases involving young men from black and mixed ethnic backgrounds; and for lacking legal legitimacy. Thus, it was hoped that the decision of the Supreme Court in England and Wales in 2016 to abolish the extended form of complicity liability, known as Parasitic Accessorial Liability (PAL), would resolve these issues. Reporting on interviews with police detectives, and prosecution and defence lawyers in England involved in cases of serious youth violence, this paper argues that the problems associated with ‘joint enterprise’ in England and Wales remain, despite the change in the law. This is due to there being only ‘subtle shift’ in practice and a continued reliance on racialised inferences about young men from black and mixed ethnic backgrounds. To reduce problems with disproportionality and improve the fairness of the law related to complicity liability, changes to police and prosecutorial practice are required, alongside meaningful law reform.

Sentencing Corporate Defendants: A Comparative Study among Kuwaiti and Britain Law

This study began with the hypothesis that British law has an advantage in regulation over Kuwaiti law regarding penalties related to companies or legal persons. This study raised several questions regarding several penalties and measures (fines, compensation orders, corrective orders, restitution orders, publication orders, Judicial rulings, submitting periodic financial reports, and dismissing company directors). To answer its questions, this study used the analytical approach by analyzing the texts of British law and how they are applied before the courts. The study compared that with the texts currently existing in the Kuwaiti legal system and the extent to which the penalties found in British law can be applied. In the State of Kuwait. Indeed, it became clear from this study that there is an advantage, but it is partial. This study found that there are penalties regulated by the British legislator that the Kuwaiti legislator did not know about, and there are penalties regulated by the British legislator in a more detailed and deeper manner than Kuwaiti law in a manner consistent with the nature of the legal person (companies). Finally, the study concluded that the Kuwaiti legislator should benefit from the experience of the British legislator about criminal corporate penalties.

Social Discipline and the Refusal of Poor Relief under the English Old Poor Law, c. 1650–1730

Abstract There has been debate about the extent to which the English old poor law could operate as a system of social discipline. This article looks closely at an almost completely neglected set of sources, petitions by local communities asking to stop (or cut) a pauper’s relief, to assess how far poor relief was used as a disciplinary tool. Taking 182 appeals by Lancashire townships from the Civil War to the appearance of workhouses in the county, it suggests that poor relief operated robustly as a system of labour discipline, but only weakly as a wider tool of behavioural control. There is some evidence that townships wanted to end doles to those engaged in ‘bad’ behaviour, such as excessive drinking, gambling, or insubordination, but such cases were infrequent. Far more important were attempts to stop relief where paupers could work or could support themselves through their own productive assets. In turn, townships’ focus on the ability to work suggests that ‘deserving’ poverty was understood in terms of bodily impotence, whilst the need to restrict poor relief to those who were ‘necessitous’ required officers to engage in close surveillance of the poor and their bodies.

The Extent to Which the Fault Is Required as a Basic Element of the Tortious Liability in the Iraqi Civil Law: An Analytical Comparative Study

The Author has done his utmost to draw distinctions between the Iraqi civil law No. (40) of 1951 from one hand and the Islamic jurisprudence, the English common law and some other Arab comparative laws. Although the Iraqi civil law is affected by the Islamic jurisprudence, and borrows the term of guaranteeing the harmful act from the juristic maxims of this jurisprudence. But it adopts impliedly the concept of the fault in the first paragraph of the article (186), by stipulating the willfulness or encroachment of both the perpetrator and the abettor. Thus confusing between the system of the guarantee and that of the liability. Unlike the Islamic jurisprudence which adopts the idea of guaranteeing the harmful act, and distinguishes obviously between the guaranteeing of the perpetrator and that of the abettor. Or between the act done directly by perpetration and indirectly by causation, and does not recognize the idea of the fault. As far as the English common law is concerned, it adopts the fault-based liability as a general principle, the same is true for the Egyptian civil law No. 131 of 1948. Whereas both the Jordanian Civil Law No. 43 of 1976, and the Federal civil transactions law No. 5 of 1985 of the United Arab Emirates adopt the idea of guaranteeing the harm rather than the fault. The problem of the research lies in the confusion, embarrassment and perplexity in the situation of the Iraqi civil law concerning the basic element of the fault in the tortious liability. Therefore the author tries hard to solve confusion, remove both the embarrassment and perplexity by analyzing the true situation of the Iraqi civil law towards this basic element, and comparing it with the Islamic jurisprudence, which is considered as its original historical source, by which it is highly affected. As well as the English common law, considered as the leading legal system within the Anglo-American legal system, and different from the civil law system, led by the French civil code, by which the Iraqi civil law is indirectly affected, through being affected by the Egyptian civil law. The author suggests some relevant recommendations, the most important of which is thedistinction between the system of the liability and that of guaranteeing the harmful act, and adopt the former in the case of the damage done by perpetration, and the latter in the case of the damage done by causation.

:Beyond Exclusion in Medieval Ireland: Intersections of Ethnicity, Sex, and Society under English Law

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Article: Codification, Convenience, and the Common Law: The Rationales Underpinning the Law Commission’s Proposed Reforms to the English Arbitration Act 1996

The Arbitration Act 1996 has regulated arbitrations in England and Wales for almost thirty years. Given the evolution of arbitral practice during this time, the UK Government in 2021 asked the Law Commission to consider potential amendments to the Act to ensure that it continues to be ‘state of the art’. The Law Commission concluded that wholesale reform of the Arbitration Act was not necessary or desirable in order to achieve that aim. The Law Commission instead proposed a series of targeted amendments, which are due to be implemented in legislation during the course of 2024. This article provides an overview of the Law Commission’s review process before discussing its key recommendations and their potential impact on London’s position as a preeminent seat for international arbitration. The article also discusses the rationales underpinning the Law Commission’s recommendations. In summary, some proposals merely modify the wording of the Arbitration Act without changing the substance of English law. A second category represents a conscious effort towards progressive development of the arbitration framework in England and Wales, to ensure in particular that London remains competitive internationally. A third category of changes seeks to build on the strengths of the English courts to ensure that the Arbitration Act continues to reflect the evolving world of arbitration. Taken together, the authors consider that the Law Commission’s targeted recommendations should go some way to ensuring that England – and London – continue to have a prominent place in that world. Arbitration, Arbitration Act 1996, Dispute Resolution, Reform, Law Commission, Consultation, England, London, Model Law, New York Convention

영국 형법의 성문화가 이루어지지 않은 이유에 대한 고찰

Britain was the first country in the world to develop the rule of law, starting with the Magna Carta, and it has long used its maritime power to influence many countries around the world, and countries that were colonised by Britain, such as India and Australia, still retain the culture, institutions, etc. of the colonial era. This influence is not limited to culture and institutions, but is even more pronounced in the realm of law. The British did not simply use the ideology of the rule of law in their mainland politics and institutions, but also used it as a tool for governance in their colonies, either in the name of promoting modernisation in the colonies, or in the direction of the colonies themselves using the rule of law to develop. In the case of India and Australia, two of Britain's major colonies, they went beyond the British common law system to enact modern laws through the process of codification, which is considered a symbol of modernisation. In the case of India, the British saw it as a bridgehead to Asia and, given its importance, actively used the rule of law as a tool to govern India, while in Australia, the rule of law was further developed. Civil law was perceived to be the domain of each country, so there was little need for codification, but criminal law was used as an efficient means of imperial power, so codification proceeded more quickly than civil law. In contrast to this trend in the colonies, however, the common law system in England has remained essentially uncodified to the present day. This behaviour seems quite unusual for a country that was one of the first to develop the rule of law. There were many people in England, such as Jeremy Bentham, who believed that codification was necessary for the development and efficient administration of criminal law. However, due to the fact that the common law system was already deeply entrenched in England and the lawyers did not want to change it, the political situation at the time when the opinions of the lawyers could not be ignored due to the majority of lawyers in Parliament, and the sense of superiority that England could not have the same form of law as the colonies as a country ruling over the colonies, codification in the essential sense did not proceed. The criminal law, which was perceived as a universal law at the time, is now in a situation where crimes have diversified due to advances in technology and require active responses based on in-depth discussions, so it seems best to actively promote codification even now to proactively respond to the diversification of crimes.

THE COURT OF ASTANA INTERNATIONAL FINANCIAL CENTER AND PUBLIC-LEGAL REGULATION MATTERS

To attract foreign investors, around 50 agreements on the promotion and mutual protection of investments has been concluded by the Republic of Kazakhstan, where the parties undertake to create favorable conditions on their territory. By the Decree of the President of the Republic of Kazakhstan of May 19, 2015, the «Astana» International Financial Center was established in the city of Astana, which has been operating since 2016. One of the main tasks of the «Astana» International Financial Center is to attract investment in the sphere of financial services of our country. In addition, with the involvement of excellent judges, and recognized lawyers the «Astana» International Financial Center Court and the International Arbitration Center were established. However, the «Astana» International Financial Center Court does not conduct administrative or criminal proceedings. At the same time, this court has exclusive competence to interpret the acts of the «Astana» International Financial Center. In this connection the question arises about the expediency of consideration of disputes with the state bodies within the framework of the Code of the Republic of Kazakhstan «Administrative Procedural Code of the Republic of Kazakhstan», where the sources of the law of the «Astana» International Financial Center include principles, norms, and precedents of the English law. Are local administrative courts sufficiently qualified to adjudicate disputes under the common law? This article will examine the structure of the «Astana» International Financial Center Court, its jurisdiction, and public-law relations under the current law of the «Astana» International Financial Center, the legislation of the Republic of Kazakhstan.

The beginnings of American forensic medicine and criminalistics in the journalistic interpretation of Bruce Goldfarb - review of the book „18 Tiny Deaths: The Untold Story of Frances Glessner Lee and the Invention of Modern Forensics”

American forensic medicine is about 100 years younger than the European one. It was in Europe that at the beginning of the 20th century, American doctors were trained and gradually expanded the field of science and expertise in forensic medicine and criminalistics. This area, for several centuries under the English law, which was in force there, had been successively „mummified” by coroners who worked for years to earn their bad reputation. The outstanding American journalist Bruce Goldfarb writes about the emergence of forensic medicine and criminalistics in the reality of the United States of America and the pioneering role of the „forensic architect” Frances Glessner Lee in his book entitled „18 Tiny Deaths: The Untold Story of Frances Glessner Lee and the Invention of Modern Forensics”. This is an extremely interesting book worth recommending to anyone interested in expanding their knowledge in this area of science.

Insanity Defence Under the Indian Criminal justice System

The "Insanity Defence" within the framework of the Indian Legal System serves as a protective measure for individuals accused of criminal offenses, especially when they lack the mental capacity to understand the nature of their actions or differentiate between right and wrong. This defence aligns with the legal principle “Actus non facit reum nisi mens sit rea,” which emphasizes that for an action to be deemed unlawful, it must be accompanied by a guilty mind. Consequently, punishing individuals who are not accountable for their actions would contravene fundamental human rights enshrined in the Constitution of India. To delve deeper into the concept of the insanity defence, it's essential to trace its origins and development within English law and its subsequent impact on Indian legal statutes. It's crucial to understand that insanity defence isn't merely a matter of suffering from a mental illness; rather, it requires a demonstration that the accused lacked the mental capacity to comprehend the consequences of their actions. Thus, the burden of proof lies with the accused, who must provide compelling evidence to establish their state of insanity, akin to the standard of “preponderance of the evidence” often seen in civil cases. This paper seeks to analyze the intricacies of insanity within the legal framework and how it has evolved into a potential loophole within the current judicial system.