Precedent In Law Research Articles

Precedent in Law

Roots of our notion of precedent, Gerald J.Postema change in the doctrine of precedent during the 19th century, Jim Evans theories of adjudication and the status of stare decisis, Peter Wesley-Smith the rule of precedent, Theodore M.Benditt practical reason and conventional wisdom - the House of Lords and precedent, Anthony Blackshield why cases have rationes and what these are, Neil MacCormick precedent, induction and ethical generalization, Michael S.Moore persuasive precedent, Richard Bronaugh.

The Response of Islamic Jurisprudence To Ectopic Pregnancies, Frozen Embryo Implantation and Euthanasia

PIP: The opinions of the Jurisconsult of Egypt on Islamic law regarding test tube fertilization, embryo transfer and abortion are explained. Test tube babies, if not derived from the husband's sperm, are by definition, zina or the result of illicit sexual intercourse. This type of quasi-adultery is punishable by mere disgracing, rather than lapidation, or stoning to death. Such children cannot inherit even from the mother. Possibly, a female child may marry the husband, to be legitimized in terms of inheritance. Under Islamic law, embryo transfer is illegal insofar as it involves artificial insemination of the donor by the husband; temporary maternity by the donor is a jural concept that has no place in Islamic family law. The egg of the donor, not the surrogate mother, places the issue in the thorny area of multiple suckling. There have been no pronouncements by Islamic legal experts on euthanasia or pregnancy by in vitro fertilization of orphaned embryos. Abortion law ijhad in Kuwait was amended in 1982 to permit abortion where either grievous bodily harm to the mother is imminent or it is proved that the baby will suffer incurable brain damage or severe mental retardation. The decision must be approved unanimously by 3 Muslim consultant physicians presided over by an obstetrician or gynecologist, parental consent is required, and the hospital must have an obstetric-gynecological wing. There is precedent in Islamic law for saving the life of the mother where there is a clear choice of allowing either the fetus or the mother to survive. Similarly in case of miscarriage or attempted miscarriage, damages for a fetus or stillborn are less than those paid for a live birth. Penalties for therapeutic abortion, for example after exposure to German measles, have been viewed as less serious before 120 days of gestation, when the Prophet indicated that the embryo is given a soul. These ethical interpretations are worth considering for Western jurists as a source of ideas.

Precedent in Law. Edited by Laurence Goldstein. [Oxford: Clarendon Press. 1987. xvi, 247. (Bibliography) 25 and (Index) 6 pp. Hardback £27·50 net.

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Use of Natural Resources in a Market Economy: Ethical and Legal Perspectives

The use of natural resources and the policy environment surrounding this use are informed by concepts derived from economic theory, extant technology, past uses, common law, statutory regulations, and descriptive ethics influenced by past and present social mores. As such, the uses of natural resources tend to reflect where society has been rather than where it is going. This is especially the case if we consider that existing laws and regulations controlling the allocation and utilisation of natural resources such as land, air, surface water, and groundwater are largely based on utilitarianism reflecting a worldview dating back to Greek antiquity. Given that utilitarianism and a worldview in which nature is perceived as immutable have become part of our legal foundation, technological changes now present ethical and economic problems that threaten part of this foundation. Within a market economy such as that of the United States, the legal environment regulating decisions regarding the use of natural resources contains contradictions that adversely affect the efficiency of allocative decision making. On the one hand, users of resources are urged to find the highest and best use of the resources and are supported by case law and legal precedent, while on the other, statutes based on alternative ethics increasingly prohibit certain uses of natural resources. Additionally, recent legislation, for example, the 1985 Food Security Act, is changing entitlement rules. Concurrently, legal doctrines such as public trust are challenging assumed private property rights. In this article I describe some of these ethical and economic problems while relating them to existing and emerging natural resources law and litigation. While doing so, I review the critical works of Jonas and Rawls. As opposed to utilitarians justifying their actions based on the intrinsic goodness or badness of the end(s) resulting from the action, Jonas and Rawls are ethical formalists seeking rules of right conduct that everyone performs as a matter of principle; see Taylor. In addition, I review the Public Trust Doctrine, and the manipulation of entitlement rules, as “tools” being used to address issues of environmental quality and resource utilisation. For example, see Calabresi and Melamed and Bromley.

The Response of Islamic Jurisprudence to Ectopic Pregnancies, Frozen Embryo Implantation and Euthanasia

The opinions of the Jurisconsult of Egypt on Islamic law regarding test tube fertilization, embryo transfer and abortion are explained. Test tube babies, if not derived from the husband's sperm, are by definition, "zina" or the result of illicit sexual intercourse. This type of quasi-adultery is punishable by mere disgracing, rather than lapidation, or stoning to death. Such children cannot inherit even from the mother. Possibly, a female child may marry the husband, to be legitimized in terms of inheritance. Under Islamic law, embryo transfer is illegal insofar as it involves artificial insemination of the donor by the husband; temporary maternity by the donor is a jural concept that has no place in Islamic family law. The egg of the donor, not the surrogate mother, places the issue in the thorny area of multiple suckling. There have been no pronouncements by Islamic legal experts on euthanasia or pregnancy by in vitro fertilization of orphaned embryos. Abortion law "ijhad" in Kuwait was amended in 1982 to permit abortion where either grievous bodily harm to the mother is imminent or it is proved that the baby will suffer incurable brain damage or severe mental retardation. The decision must be approved unanimously by 3 Muslim consultant physicians presided over by an obstetrician or gynecologist, parental consent is required, and the hospital must have an obstetric-gynecological wing. There is precedent in Islamic law for saving the life of the mother where there is a clear choice of allowing either the fetus or the mother to survive. Similarly in case of miscarriage or attempted miscarriage, damages for a fetus or stillborn are less than those paid for a live birth. Penalties for therapeutic abortion, for example after exposure to German measles, have been viewed as less serious before 120 days of gestation, when the Prophet indicated that the embryo is given a soul. These ethical interpretations are worth considering for Western jurists as a source of ideas.

Smoking: A Jewish view

The issue of smoking and Jewish law is explored. After the dangers from smoking are cited, various precedents in Jewish law are presented as the basis for confronting the matter of smoking. Arguments are suggested for strictly prohibiting smoking. The matter of the effects of smoking on the non-smoker is the subject of much research, and the dangers posed to the innocent bystanders are an added dimension pointing to the hazards of smoking and therefore indicating that it should be prohibited.

The Negotiations for the Future Political Status of Micronesia (1980-1984)

Fourteen years of Micronesian political status negotiations culminated in 1983 with the final signature of the Compact of Free Association between the United States and the Governments of Palau, the Marshall Islands and the Federated States of Micronesia (FSM). Upon being approved in accordance with its terms and the constitutional processes of the signatory Governments, the Compact will establish bilateral relationships between the United States and the new states emerging from the Trust Territory of the Pacific Islands. Approval of these future political status arrangements will also provide the basis for termination of the Trusteeship Agreement between the United States and the United Nations Security Council. The Compact defines an international political partnership between the United States and the freely associated states that is without precise precedent in international law or U.S. domestic practice. Under the Compact, each freely associated state will enjoy control over its internal affairs and its foreign relations, including competence to enter into international agreements. Mutual security arrangements, set forth in the Compact and its separate agreements, provide for a U.S. defense umbrella during the life of free association and long-term exclusion of third-country military forces, should any or all of the freely associated states opt for independence at some future date.

Dyson Distinguished Lecture: Precedent and Policy in Constitutional Law

Dyson Distinguished Lecture: Precedent and Policy in Constitutional Law

Precedent In English Law. Third edition. By Rupert Cross, Vinerian Professor of English Law in the University of Oxford. [Oxford: Clarendon Press. 1977. ix, 239 and (Index) 3 pp. £5·95 net.

Precedent In English Law. Third edition. By Rupert Cross, Vinerian Professor of English Law in the University of Oxford. [Oxford: Clarendon Press. 1977. ix, 239 and (Index) 3 pp. £5·95 net.

Expulsion Laws Confront Due Process in Federal Courts

The courts are becoming more definitive in their application of due process to public school dis missal procedures; existing state laws are being superseded. Here is a summary of present state law and legal precedent on the subject, with recommendations of use to school authorities where state law and precedent are inadequate or absent.

Precedent in English Law and Other Essays. By James Louis Montrose, ll.b. (Lond.), Hon. ll.d. (T.C.D.), Honorary Fellow of University College, London; Dean of the Faculty of Law and Professor of Law, Queen's University, Belfast, 1934–63. Edited by Harold Greville Hanbury, q.c., d.c.l. [Shannon: Irish University Press. 1968. vi and 368 pp. £3 3s. net.

Precedent in English Law and Other Essays. By James Louis Montrose, ll.b. (Lond.), Hon. ll.d. (T.C.D.), Honorary Fellow of University College, London; Dean of the Faculty of Law and Professor of Law, Queen's University, Belfast, 1934–63. Edited by Harold Greville Hanbury, q.c., d.c.l. [Shannon: Irish University Press. 1968. vi and 368 pp. £3 3s. net.] - Volume 28 Issue 1

The Reception of the Common Law and the Authority of Common Law Precedents in the Territory of Papua and New Guinea

ENGLISH law is the foundation of the legal system in the Territory of Papua and New Guinea and the common law of England remains a very important component of the basic law.1 English precedents are frequently cited in the courts of the Territory. However no English court is a member of the local curial hierarchy and it therefore follows that no English precedent ever binds a Territory court by virtue of the doctrine of stare decisis. This article explores the possibility that certain English decisions may be binding for another reason-by virtue of the reception of the common law.

The publication of judicial decisions as a reason for convincing precedent

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.
 It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

REVIEWS

Precedent in English Law and Other Essays. By James Louis Montrose. Edited by H. G. Hanbury.Precedent in English Law. By Rupert Cross. Second Edition.Double Jeopardy. By Martin L. Friedland.The Making of a Criminal. By Patricia Elton Mayo.Constitutional Law in Northern Ireland: A Study in Regional Government. By Harry Calvert.The Vietnam War and International Law. (Sponsored by the American Society of International Law.) Edited by Richard A. Falk.Law and Vietnam. By Roger H. Hull and John C. Novogrod. Foreword by Myres S. McDougal.The Middle East Crisis: Test of International Law. Edited by John W. Halderman. Law and Contemporary Problems Series, No. 11.Restatement of African Law. Kenya. Volume I: The Law of Marriage and Divorce. Volume II: The Law of Succession. By Eugene Cotran. General Editor, Professor A. N. Allott.The Law and Practice of Nigerian Wills, Probate and Succession. By Brian W. Harvey.Uganda, The Development of its Laws and Constitution. By H. F. Morris and James S. Read.Le Droit de la Famille en Afrique Noire et à Madagascar. Edited by Kéba M'Baye. Preface by Marc Ancel.Ideas and Procedures in African Customary Law. Edited by Max Gluckman.Neutralization and World Politics. By Cyril E. Black and Others.

Charles Sumner, the Constitution, and the Civil Rights Act of 1875

IN 1883, the United States Supreme Court, proceeding on traditional common law precedents, declared the Civil Rights Act of 1875 unconstitutional. The Act thereafter sank into the recesses of obscurity. However, in the legislative history of the Act there lies buried a unique feature which is now significant in light of the 1954 Supreme Court decision in Brown v. Board of Education. In this case, the Court did what Charles Sumner had urged as early as 1846, interpreting the Constitution not by the hallowed precedents of the past but by the social realities of the present. As Sumner pressed for the passage of a civil rights act in the early 187o's, he expressed something of the judicial-social pragmatism that would not take permanent form in legal thought until over a half century later in the judicial philosophy of Oliver Wendell Holmes and Louis Brandeis. It was this philosophy which ultimately found articulation in the civil rights context of the Brown ruling, thereby annulling at least the effect of the 1883 Civil Rights Cases decision which held the Civil Rights Act of 1875 unconstitutional. It was Sumner's search for a new rule of constitutional interpretation that makes the legislative history of the Civil Rights Act of 1875 significant. And it is a tragedy of our time that the courts of Sumner's day failed to accept the wisdom of the Senator's position, thereby requiring the present generation to re-win a victory which should have been secured in 1875.

Precedent in English Law. By Rupert Cross, Fellow of Magdalen College, Oxford. [Oxford; Clarendon Press. 1961. ix, 258 and (indices etc.) 10 pp. 21s. net.

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The Nature of Hazardous Duty in Military Desertion

A RTICLE 85(a)(2) of the Uniform Code of Military Justice' provides that an absentee who goes AWOL to avoid is a deserter, and, in time of war, punishable with death; This threat is not mere brutum Julmen; the only American serviceman executed since the Civil War for a purely military offense was shot to death by a firing squad during World War II in Europe for a violation of this provision.' This capital crime is therefore well worthy of precise definition, yet neither the Code itself nor the current Manual for Courts-MartiaP makes any attempt to define the term comprehensively or dearly. Indeed, the Manual's only example of is in a combat or other dangerous area, the first half of which is misleading and the second half of which is redundant. The lack of definite standards for the term hazardous stems in part from its introduction into the Articles of War as a novel term, without any prior military law background in the English Code,5, and it is probable that those who drafted the original statute had only the haziest ideas of its precise coverage, beyond the inclusion of combat itself. This dearth of legislative background makes it feasible and desirable to approach the problem of defining the term from a common law point of view, determining what duty is hazardous in light of sound military policy, consistent legal reasoning, and relevant service experience. This article will explore the military law precedents which have dealt with the problem of what constitutes duty. From these precedents, it is believed that some rational common law standards

Judicial Precedents in Criminal Law

Judicial Precedents in Criminal Law

The Doctrines of Judicial Precedent in Scots Law. By T. B. Smith. [W.Green & Son, Ltd. 1952. xii and 115 pp. 12s. 6d.

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The Doctrine of Judicial Precedent in Scots Law

Journal Article The Doctrine of Judicial Precedent in Scots Law Get access Smith T. B.. The Doctrine of Judicial Precedent in Scots Law. Edinburgh: W. Green & Son, Ltd., 1952. Pp. xii, 115. Albert A. Ehrenzweig Albert A. Ehrenzweig Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 2, Issue 2, Spring 1953, Pages 255–258, https://doi.org/10.2307/837311 Published: 01 April 1953