Common Law Principles Research Articles

Capital Punishment Repeal in England: A Paradigm Shift towards Restorative Justice and Human Dignity

The inherent disgracefulness of death consciously inflicted upon a person by his fellows, may make the death sentence highly untenable, from a strict humanitarian prospective. It’s here where the concerned state authorities come into action and claim that if at all the death sentence is to be retained, its imposition must be with utmost human decency ensuring evolved standards. However, the movement away from brutal and cruel punishment has been a slow yet steady process. With the gradual evolving standards of human decency and dignity, the law needs to be changed with the changing dynamism of the dynamic society. Nonetheless, the American society, being one of the oldest civilizations in the world owes to itself that the agony at the exact point of execution should be kept to the minimum. This becomes more crucial when execution is the outcome of a judicial verdict. Courts play a vital role in major social reform, and that we as a society do have certain expectations from the very independent and impartial organ of the state. Moreover, history is a witness to significant social reforms bought by amendments to the prevalent law, through judicial process. Effective judicial intervention in social controversy requires a consensus on the goals and objectives of social change, at a time in history when as a society it is our failure to agree with the goals and purpose of social change that is one of the principal causes of social unrest. Judges have traditionally been very careful to emphasize that their role is not to make the law, merely to apply it. But it is apparent that judges play a significant role in the development of law through the interpretation of both common law principles and legislative provisions. The phrase “judicial responsibility” means not just the responsibility to uphold the law; it means the overarching responsibility to do justice. Courts should realize that as long as there is life, there is room for reform

Unfair competition law in Ghana: unravelling the scope, evolving jurisprudence, challenges and future directions

Abstract Despite its implications for businesses and consumer welfare, unfair competition law has received limited scholarly attention in Ghana. This article fills a significant research gap by examining Ghana’s legal framework for unfair competition, focusing on legislative measures and court decisions in an attempt to facilitate comprehensive academic inquiry into the subject. The article explores how Ghana addresses unfair competition in line with international standards, particularly Article 10bis of the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. It assesses how Ghanaian courts have developed unfair competition protection jurisprudence over time with co-existing statutory and common law regimes. Additionally, it highlights the challenges in applying the law and areas for improving it. The study demonstrates how Ghana adopts various approaches to unfair competition, comprising a single source statutory reference point which coexists with the common law tort of passing off. The statutory approach, alone or with the other approaches, meets Ghana’s international obligations. However, there is a need for coherence and effectiveness in the interaction between statutory law and common law principles. Understanding this interaction is essential for ensuring Ghana’s consistent and effective application of unfair competition laws.

A common law in space for public health

Beyond the gravitational pull of Earth, space travel poses substantial public health hazards pertaining to the physical and mental well-being of astronauts and passengers, in addition to a possible threat to the populace of Earth upon re-entry. Exposure to cosmic radiation, cranial pressure from microgravity, weakened immunity to contagion, and the potential for depression and psychosis are all risks. Public health crises of this nature are to be expected as the duration of missions extends, as is the case with Mars settlement. In contrast to national space programmes, which have regarded these obstacles as human factors effecting the mission, public health law in common law British nations approaches them from the perspective of social justice and the preservation of human life and societal welfare. Countries including Australia, Canada, the United States, and the United Kingdom continue to apply traditional common law principles of public health law, which provide a sensible and enduring method for reconciling competing public and private interests. Common law permits the violation of civil liberties through the use of force in public health restraint, forced medication, and quarantine, but only if necessary, reasonable, and equitable. While the understanding of the health challenges associated with long-duration spaceflight may be in its infancy for national space programmes and civilian space ventures, the application of common law public health principles could aid in the establishment of health and safety protocols in which human reactions to crises in space resemble those observed on Earth. This may, nevertheless, necessitate the enactment of a more comprehensive federal public health statute. Embedded in both public health common law and international space law, the pre-eminence of preserving and respecting human life and well-being continues to be a cornerstone of humane justice despite the perilous conditions of space.

A CRITICAL ANALYSIS OF THE REGULATORY FRAMEWORK RELATING TO CYBERSQUATTING IN INDIA

The arrival of the internet has brought an explosion in the process of registration of domain names that has resulted in the issue of cybersquatting for financial gain. As per the WIPO data, the cases related to domain name disputes have dramatically increased. For the first time in 1999, the ICANN adopted a uniform policy framework (UDRP) to address the problem of cybersquatting for speedy disposal of domain name disputes. At the global level, only the United States of America has particular legislation that makes cybersquatting a crime. In the Indian context, there is no particular legislation to tackle cybersquatting matters, the courts apply the various approaches along with the common law principle of the trademark to resolve the disputes. The article wishes to critically analyze the international and national legal and policy frameworks related to cybersquatting

Liberty, the Maria Luz Incident and the Liminal Legal Status of Chinese Indentured Labourers and Japanese Licensed Prostitutes

Abstract While covering the same ground as recent scholarship on the emancipatory potential of the Maria Luz incident, this article takes a radical departure, arguing that the background to the incident was British desire to disrupt the Macao trade in Chinese labour to Peru; that the legal focus of the ad hoc tribunals was not on any nascent human right to free the Chinese men and minors from being trafficked to Peru but on who owned and controlled their labour; and that the release of Japanese licensed prostitutes from their contracts was an unintended consequence of the legal fiction that the Japanese legal system was comparable with the principles of British common law.

Other Things Said

The common view in legal education and practice has been that obiter dicta or ‘the things said in passing’ are not part of the corpus of legal reasoning that is binding, which then begs the question, ‘If so, what is their value?’ This review essay offers a detailed overview of Neil Duxbury’s The Intricacies of Dicta and Dissent, highlighting the significance of Duxbury’s contribution to the literature on this important subject. Against a backdrop of few book-length treatments of these commonly deemed ‘subsidiary’ forms of legal reasoning, Duxbury offers a comprehensive historical account of dicta and dissent in adjudication, and of their varied impacts on legal development. Though falling short of advancing a normative account, Duxbury’s book nevertheless provides a nuanced and balanced description of the natures of dicta and dissent, engaging with the complexities of judicial reasoning beyond a conventional black-and-white approach. In so doing, this book sets the groundwork for any normative analysis of the role dicta and dissent can play in shaping common law principles. It is anticipated that this book will remain an invaluable contribution to the field of judicial interpretation, especially as a necessary, vital resource upon which future scholarship may build.

Climate Volatility, Foundational Freedoms, and the Environment Act 2021: The Transformative Potential of the Principle of Legality

Abstract The UK Environment Act 2021 presents a valuable case study of the importance and challenges of protecting foundational freedoms in the context of complex and ambiguous environmental legislation. This article argues that the common law principle of legality provides a vital tool for courts to uphold rights imperilled by climate volatility and environmental decline by presuming against rights-infringing interpretations of environmental statutes. Analysing key provisions of the Act and its associated Parliamentary processes, the article focuses on areas such as statutory language clarity, the scope of executive powers, and the framework for public participation. It explores how the principle of legality and other interpretive approaches could help to resolve these issues and ensure the Act is applied in a way that promotes environmental accountability. The article argues that the principle of legality has a crucial role to play in ensuring environmental law delivers on its promise to protect both the environment and foundational freedoms.

Navigating Reputational Risks: Cautionary Considerations for South African Banks in the Unilateral Termination of Bank-Customer Relationships

Bredenkamp v Standard Bank of South Africa Ltd (SCA) and subsequent cases that followed this precedent exhibit that banks have the right to terminate the bank-customer relationship unilaterally. This right is usually entrenched in the contract between the bank and its customer and may also have its origin in an implied term of the contract. Some major banks in the Republic of South Africa have recently been under the spotlight for unilaterally terminating the bank-customer relationship with their customers (the Sekunjalo Group) based on reputational risks. It is alleged that in terminating the relationship, these banks unfairly discriminated against Sekunjalo Group, therefore asserting that the principle of reputational risk is not attributed similarly across customers of different racial groups. Whereas the paper does not intend to decide on such allegations of racial discrimination, the paper asserts that the unilateral termination of a bank-customer relationship is both a right and an obligation. The paper adopts a qualitative research approach in analysing the contractual nature of a bank-customer relationship, the common-law principles regarding the termination of the bank-customer relationship, and the developments in the application of the principle of reputational risk by South African banks and courts in the wake of the applications lodged by members of the Sekunjalo Group.

You Stole Our Land: Common Law, Private Property, and Rothbardian Principles of Justice

Demands for justice based on allegations that “you stole our land” seem to evolve interminably without resolution. In responding to these demands it seems trite to observe that the law must not let the violation of rights go without a remedy, but how should property law resolve cases of wrongful acquisition arising from historical conquest? It is easy to say in the abstract that stolen property must be returned to the true owner, but in the context of historical dispossession it is often difficult to identify the “true owner” when centuries have elapsed since the alleged dispossession. Based on a comparison between the common law tradition and Rothbardian principles of property rights, this article argues that the “stolen land” debates are characterized by arbitrary and unprincipled distinctions between different cases. Far from resolving any disputes, that approach only fuels fresh rounds of hostility and conflict. Allegations of wrongful acquisition of title must instead be evaluated by reference to an ethical theory of justice based on objective principles of natural law.

New valproate regulations, informed choice and seizure risk

Valproate is the most effective medication for generalised epilepsies, and several specific epilepsy syndromes. For some people, it will be the only medication to establish seizure remission, and withdrawing it carries risks of seizure recurrence and Sudden Unexpected Death in Epilepsy (SUDEP). It is also of proven efficacy for bipolar disorder and migraine prevention. Guidelines based on observational and epidemiological studies stress that maternal valproate related teratogenicity and neurodevelopmental effects are significantly higher than for other antiseizure medications (ASMs). It should, therefore, only be used if other medications are ineffective and after balancing the teratogenicity risk. Regulatory restrictions have changed prescribing practices and reduced valproate use. The number of other medications that must be trialled in the different conditions for which valproate has effectiveness and the consequences of the lack of efficacy of those drugs leading to significant harm including death remains unexplored. Risk minimisation measures (RMMs) for valproate, chiefly Pregnancy Prevention practices (PPP), consider foetal risk and not risk to people living with epilepsy. In the United Kingdom (UK), limitations relating to valproate use in all people < 55 years commenced in January 2024. While the evidence in child-bearing women is not disputed, the data in males are based on animal models, case reports, and one commissioned, unpublished, non-peer reviewed report unavailable to the UK public, stakeholder charities or professionals. Evidence suggests that 30–40% of people switching from valproate have breakthrough seizures. Thus, an estimated 21,000–28000 people in the UK will imminently be exposed to the potential hazards of breakthrough seizures, including death. There is little government investment in monitoring the effects of these changes to valproate prescribing on patient health and quality of life. This review summarises the history of valproate regulation, evidence underpinning it and argues how the latest regulations in the UK do not align with the country’s medical regulatory bodies ethical principles nor with the Montgomery principles of informed patient choice and autonomy. It dissects how such regulations infringe Common Law principles, nor give due regard for patient outcomes beyond reproduction. The paper looks to provide recommendations to redress these concerns while appreciating the core need for such governance to emerge in the first place.

Litigation and liability in concussion research and collaboration

ABSTRACT This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries or individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research.

THE EMERGENCE OF THE ADMINISTRATIVE JUDICIARY: AN APPLIED STUDY COMPARING THE SIMILARITIES AND DIFFERENCES BETWEEN QATAR AND BRITAIN

Objective: This study aims to analyze and compare the emergence of administrative judiciary systems in Qatar and Britain. The administrative judiciary plays a crucial role in ensuring the rule of law and protecting citizens' rights in modern legal systems. By examining the similarities and differences between these two countries, this study seeks to shed light on the factors that have influenced the development and implementation of administrative judiciary systems.&#x0D; &#x0D; Method: The research methodology employed in this study includes a comprehensive literature review, analysis of legal frameworks, and comparative analysis. The study explores the historical background and legal traditions of both Qatar and Britain to understand the contextual factors that have shaped their administrative judiciary systems.&#x0D; &#x0D; Result: The findings of this study reveal to: both countries have legal frameworks and court structures in place to regulate administrative matters. Second, they differ in their legal foundations, with Qatar following a civil law system and the United Kingdom adhering to common law principles. Third, the scope of judicial review varies, with Qatar focusing on legality and procedural fairness, while the United Kingdom has a broader scope that includes the merits and reasonableness of administrative decisions. Furthermore, the study identifies key factors that have influenced the emergence of administrative judiciary systems in these countries. The study also highlights the impact of international legal norms and practices on the development of administrative judiciary systems. The findings of this study can inform policymakers and legal practitioners in their efforts to strengthen and improve administrative judiciary systems.

LEGAL REGULATION OF ADVANCES AND DEPOSITS UNDER CONTRACTS RELATED TO REAL ESTATE. NATIONAL AND FOREIGN EXPERIENCE

In this comprehensive article, the authors delve into the intricate legal landscape surrounding advances and deposits in real estate contracts, offering valuable insights drawn from both national and foreign jurisdictions. The article begins by highlighting the significance of advances and deposits in real estate transactions and the challenges posed by varying legal regulations across different regions. The authors provide a thorough examination of the regulatory frameworks governing advances and deposits in real estate contracts, focusing on key principles, practices, and case studies from national perspectives. They discuss how statutory law, common law principles, and industry standards shape the treatment of earnest money deposits in countries like the United States, emphasizing the importance of understanding jurisdiction-specific requirements to avoid disputes and liabilities. Drawing from foreign experiences, the article explores alternative approaches to regulating advances and deposits, such as deposit protection schemes implemented in countries like the United Kingdom and Canada. By analyzing the mechanisms and effectiveness of these schemes, the authors highlight valuable lessons for enhancing consumer protection and promoting confidence in real estate markets worldwide.

EXAMINING THE APPLICATION OF STANDARD OF PROOF IN CRIMINAL CASES: A COMPARATIVE ANALYSIS OF ISLAMIC LAW AND COMMON LAW IN MALAYSIA

In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law.

Perspectives of the Court of the Astana International Financial Centre: Potential to Transform the Central Asian Legal Landscape

AbstractThe rise and proliferation of International Commercial Courts has become a perceptible trend across the European and Asian continents over the past two decades. One such dispute resolution hub exists within the Astana International Financial Centre, a special jurisdiction within the Republic of Kazakhstan that operates on the basis of common law principles. The Astana International Financial Centre and its Court were modelled on the international financial centres of Dubai and Qatar; however, there are substantial differences between the legal systems of the Gulf States and that of the Republic of Kazakhstan. As a result, the creation of a new court has led to considerable criticism within the local legal community, raising serious doubts as to whether the Kazakh state should be maintaining and financing a ‘caviar-court’ instead of using resources to reform and develop the national judicial system. Nevertheless, despite the scepticism surrounding the financial centre, there is potential for the Astana International Financial Centre and its Court to become a regional dispute resolution hub for post-Soviet countries and the Central Asian region, following the example of Singapore and Dubai.

The Prosecution of Heresy in the Henrician Reformation

ABSTRACT At the beginning of Henry VIII’s reign, the prosecution of heresy was based on three statutes of the late fourteenth and early fifteenth centuries. Under this system, the Church tried the crime with the assistance of secular authority. Juries presented suspects, whose cases were then transferred to the church courts for determination. In 1532, the Supplication against the Ordinaries challenged the conduct of heresy trials. It invoked common-law principles about due process and standards of proof. Two years later, a new statute modified the system, although less drastically than had been proposed. The royal supremacy and new religious policies changed the context in which heresy was prosecuted. Up until 1539, however, the church courts still determined accusations. Thereafter, in the case of specified heresies, the Act of Six Articles made lay juries responsible for determining guilt or innocence. Commissions under this act combined elements of canon law and common law. These reforms were, however, not seen to have improved the conduct of heresy trials. It proved easier to criticize the traditional method of prosecution than to devise a better one.

Análise crítica do direito de publicidade

This article critically analyses the right of publicity under the laws of the United States (specifically California and New York), Iraq, the United Kingdom and the European Convention on Human Rights (ECHR) convention. The right of publicity is defined as a right designed to preclude the unauthorised utilisation of an individual's identity, typically involving appropriation of an individual’s likeness, name, voice, or image. This right was recognised to address the gaps and shortcomings of the right to privacy. This article analysed the legal frameworks of various jurisdictions, including the US states of New York and California, Iraq, the UK, and the ECHR. It was found that the right of publicity is conferred upon individuals by statutes in New York without reliance on common law. However, in California in addition to statutes, this right is also protected by common law. Conversely, Iraq, the UK, and the ECHR lack dedicated provisions for safeguarding the right of publicity. Still, there exist certain legal frameworks and common law principles in these jurisdictions that provide some degree of indirect protection to individuals. Given the global technological advancements, there is a need for protection to be afforded to individuals in order to safeguard their identity, and this protection could be achieved through the right of publicity. Consequently, this study suggests that Iraq, the UK and the EU should enact specific legislation governing the right of publicity. Such legislation would facilitate a more direct process for individuals seeking compensation for violations of this right. However, any regulation of this right shall carefully strike the balance between an individual's right to control their identity and the right to freedom of expression.

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.

Mapping the Common Law Development of Physician- Administered Euthanasia and Physician-Assisted Suicide against the Background of the Application of the Bill of Rights

The Pretoria High Court is considering whether to recognise a right to physician-assisted death. This is a right to request a physician to administer a lethal prescription which a terminally ill patient can use to end their lives or to be allowed to obtain a lethal prescription which they will self-administer. In deciding the matter, the court will have to determine whether it should remove the common law prohibition on both ways of bringing about a quick and painless death. The question that will have to be answered is whether the common law prohibition is consistent with the Constitution. If it is not, the court will either develop the common law or leave it to Parliament to remove the inconsistency. However, before the court can begin this work it would have to decide on the correct approach to the application of the Bill of Rights to the common law principles of murder and culpable homicide. In effect it would have to decide how sections 8(1), 8(3) and or section 39(2) of the Constitution apply to the dispute. This research explores how these operational provisions should apply when assessing the constitutionality of the right to physician-assisted death. In effect it argues that during this process the court must always have regard to section 39(2), irrespective of whether there is a direct application or an indirect application of the Bill of Rights to the common law. Its application arises under section 8(1), where the court is asked to declare the common law invalid on the basis of being in direct violation of a constitutional right. It also applies in situations where the court is asked to develop the common law under section 8(3). Lastly, it is applicable where the common law is challenged for being in indirect conflict with the spirit, purport and object of the Constitution. Having established the role of section 39(2) in both the direct and indirect application of the Bill of Rights, the paper concludes by critically analysing the remedies that attend each of the operational provisions in relation to the common law prohibition on physician-assisted death.

Advancing Women's Rights to Joint Ownership of Matrimonial Property in Nigeria: Using Kenya as a Model

This article critically reviews the concept of matrimonial property in Nigeria, with particular reference to real property and the rights of spouses to it during marriage dissolution, against the backdrop of extant statutes and case law on the subject, and makes a case for a reform using Kenya’s progress in this area of law as a model. It identifies gaps and inconsistencies in the existing statutes and case law on the subject in Nigeria which render many verdicts controversial, unsatisfactory and inequitable. First, the reviewed literature identifies that neither statute nor case law proffers a definition of matrimonial property. Secondly, the only criterion in the Matrimonial Causes Act 1970 for sharing property amongst spouses upon divorce, which is to the Judges’ discretion, has often been wrongly applied to stress substantial contribution in financial terms. This is due to the fact that the common law principle adopted in matrimonial property sharing upon dissolution of all types of marriages in Nigeria stresses substantial contribution in financial terms. This common criterion is unrealistic in light of modern global and local economic, social, and cultural realities; its application is also obsolete in the English jurisdiction where it originated. This paper therefore makes a case for the emergence of a law which will define matrimonial property and also specifically state the rights of spouses and resolve lingering issues of inconsistencies and lack of fairness arising from both the existing statutes and case law using Kenya’s progress in matrimonial property system as a model.