Common Law Principles Research Articles

Political and legal conflicts during the English Revolution of 1640–1660

The purpose of this article is to analyze the main political and legal conflicts of the period of the English Revolution of 1640–1660. The methodological basis of this study is the conflictological, hermeneutic and socio-cultural approaches. The authors focus on the fundamental conflict between supporters of the absolutist reception of the Divine Right of Kings and adherents of the principles of common law, which led to the Civil Wars of 1642–1646 and 1648, as well as the search for new forms of legitimacy during the independent republic and protectorate. The historical experience of the English revolution of the mid-17th century is important, given the study of the possible and the impossible, alternatives between a personalist and representative government, a monarchy and a republic, the power of an oligarchic or military minority and popular sovereignty, contradictions between religious form and political content, the good aspirations of the people. Collective subjects of social dynamics and the negative consequences of their implementation. Based on the study of extensive material, conclusions were drawn that: 1) throughout the entire period of the revolution, that is, from 1640 to 1660, various political and legal ideas collided and competed with each other in the public space and mass consciousness of the British, ranging from official receptions of absolutism and ending with the original concepts of the republic and the people’s 2) conflicting social and cultural communities proposed antagonistic concepts of power, legitimacy and the public good; 3) the political ideas of the conflicting parties were expressed mainly in the language of the Bible, which was the main source of meanings; 4) common law lawyers played a huge role in curbing anarchy and revolutionary chaos.

Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?

Every day in EDs, clinicians are faced with situations where they need to decide whether to detain a patient for assessment and treatment. For patients who meet the relevant criteria, provisions of mental health legislation can be used. For other patients, clinicians often rely on so-called 'duty of care'. This article briefly explores this complex area of law, including the relevant legislation, common law principles and grey areas. It also proposes an approach to decision-making in this area.

Tax treatment of collective investment scheme portfolios in South Africa: Assessing implications and alternative solutions

The Collective Investment Scheme (CIS) industry plays a significant role in South Africa's savings and economic landscape, with substantial growth and assets under management in recent years. However, the tax treatment of CIS portfolios has become a subject of concern, as incorrect approaches could lead to substantial revenue losses for the fiscus. This study examines the proposed amendment to section 25BA put forward in the 2018 Draft Taxation Laws Amendment Bill, which aims to introduce a new tax treatment for the proceeds of sales of financial instruments held by CIS portfolios for less than 12 months. Through a comprehensive analysis of the proposed amendment, this study explores the potential implications and challenges that may arise if the amendment is implemented. It also investigates the common law principles in South African case law regarding capital and revenue determination and assesses their applicability to CIS managers and portfolios. By doing so, the study highlights the need for clarity and consistency in tax methodology to ensure fair treatment within the CIS industry. In response to the identified issues, the study proposes alternative solutions that align with existing legislative frameworks and uphold precedents set by case law. These alternative solutions aim to promote tax compliance, transparency, and efficiency within the CIS industry, while avoiding the potential drawbacks associated with the proposed amendment. The findings of this study contribute to the ongoing discourse surrounding tax and provide valuable insights for policymakers, regulators, and stakeholders within the CIS industry. By critically examining the Proposed Amendment, analysing its implications, and offering alternative solutions, this research contributes to a better understanding of the complexities surrounding tax treatment in the CIS industry and facilitates informed decision-making.

Religious Jurisdiction System: A Comparison In Brunei Darussalam And The Philippines

Brunei Darussalam is a country that has an absolute monarchy style of government based on Islamic law with the Sultan serving as Head of State and Head of Government, concurrently serving as Prime Minister and Minister of Defense assisted by the Advisory Council of the Sultanate and several Ministers. Brunei or also called the Malay Islamic Kingdom (MIB) made Islam its national ideology. The method used in this study uses Library Research which is a data collection technique by examining various literature including journals, books, magazines, and other data sources, to link the results obtained from these various sources. Brunei's legal system is based on English common law, with an independent judiciary, judicial bodies, written common law statutes, and statutes passed by the Sultan. Courts have different jurisdictions, so the sentences imposed are different. The courts at that time were: (1) Resident Court, (2) First Instance Court, (3) Second Instance Court, and (4) Indigenous and Kathis Magistrates Court. Meanwhile, the Philippine Legal System is a blend of the Roman Civil Law System and the Anglo-American Common Law System. The Civil Law system operates in areas such as family relations, property, succession, contracts, and criminal law while the statutes and basic principles of Common Law are evident in areas such as constitutional law, procedure, corporate law, negotiating instruments, taxation, insurance, labor partner work, and banking law. Islamic law prevails and is recognized in parts of Mindanao with the establishment of Shari'ah courts. This research aims to find out how the religious justice system is in Brunei Darussalam and the Philippines

Cross‐border insolvency law in India: Are the principles of comity of courts and inherent common law jurisdiction relevant?

AbstractDeliberations are in the final stages for enacting a cross‐border insolvency law in India based on the UNCITRAL Model Law on Cross Border Insolvency 1997 (‘Model Law’). The cross‐border insolvency regime in India will provide an avenue for recognising foreign insolvency proceedings in India. Although it is a matter of time before India adopts the Model Law, it is important to examine whether there remains an independent basis in addition to the Model Law for recognising and providing assistance to cross‐border insolvency proceedings in India. This is crucial on account of the following reasons: first, the Model Law does not provide that it is the exclusive pathway for foreign creditors to seek remedies under domestic law. The Model Law, as reflected in Article 7, was intended by its drafters to be an additional gateway to those provided under local laws. The proposed Indian law in Article 5 of Draft Part Z of the Insolvency and Bankruptcy Code 2016 also does not depart expressly from this principle. Second, there may be instances where neither the ‘Centre of Main Interests’ nor an establishment of a corporate debtor is situated in India; therefore, assistance and cooperation in respect of such cross‐border insolvency proceeding can only be based on the inherent common law jurisdiction, if available. Third, the cross‐border insolvency framework in India will be premised on the requirement for reciprocity and, therefore, countries that do not meet the reciprocity requirement may find it beneficial if such an independent basis for recognition exists in India. This article argues that foreign representatives should be encouraged to explore the possibility of seeking assistance from the commercial courts in India under the common law principles governing cross‐border insolvency and that the courts in India should be open to this possibility.

The reception of OHADA law in anglophone Cameroon: appraisal and proposals

Abstract This article assesses the extent to which the law under the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) has been received in anglophone Cameroon after 26 years of existence, with specific focus on the Fako judicial division.1 With regard to the tenets of qualitative research, it is observed that, from the viewpoint of the legal reception technique, it is indisputable that OHADA law has been infused into the English-speaking legal system in Cameroon through legal techniques of transposition. Through the use of interviews and questionnaires as our research tools, it is revealed that this reception remains limited because most judicial actors still find it difficult to implement legislation that they have not yet mastered. Linguistic issues and the difficulties faced in accessing the Common Court of Justice and Arbitration based in Ivory Coast in Abidjan on OHADA-related matters are serious obstacles to its effective implementation. This situation has been worsened by the poor articulation of clichés that tend to radically oppose OHADA law compared to common law principles. This article tries to deconstruct the ideas received as it shows some of the similarities in the substantive law under the two systems and consequently advocates on this basis the idea that efforts be made to familiarize common law jurists with the content of OHADA law. The article recommends that linguistic issues be tackled by OHADA lawmakers right from the stage of legal drafting by using drafting techniques that will reduce the feeling that the common law is being neglected. For uniform acts yet to be translated, the translation process should associate experts in comparative law to enable the use of appropriate legal language in translation from French into English. Only such efforts will entice the common law African countries that are still hesitating to join OHADA law and, by so doing, will render investment in Africa more attractive.

Protecting a View in Australia: Common Law Principles, Restrictive Covenants and Planning Law

Protecting a View in Australia: Common Law Principles, Restrictive Covenants and Planning Law

Utah's Women Homesteaders

Utah's Women Homesteaders

Cohabitation and the Law Relating to Property Sharing in Uganda

This paper examines cohabitation and the law relating to property sharing in Uganda. The paper indicates that the law on property sharing is applicable to parties who have celebrated their marriage under the laws of Uganda, although the latter is silent on the issue of presumption of marriage. Today the trend has changed and this has been attributed to a number of factors such as the availability of finances, increased levels of education, literacy and advocacy; and the norm of courtship amongst others. With parties living together, property is acquired and upon separation, it is always contentious on whether the property acquired during the subsistence of that relationship is to be shared. The courts have attempted to interpret and apply the law using principles of equity and common law as the law on marriage, divorce and succession is inapplicable to such unions. The paper provides recommendations on the different strategies to be employed policy makers and cohabitees towards having protection before the law regarding property obtained during the subsistence of such relations.

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

The Application of Section 8 of Cybercrimes Act 19 of 2020 in Civil Procedure in South Africa is a Hailing Snow: A Comparative Studies between South Africa and United Kingdom

In South Africa the legislature passed a statute that regulates cyber fraud that is called Cybercrimes Act 19 of 2020 in an attempt to combat cybercrimes, which include cyber fraud. The commission of cyber fraud in Civil Procedure constitutes a cause of action that enables the victim to claim for damages. It is not clear in terms of Cybercrimes Act whether the victim may institute proceedings whilst the matter is pending before the court in criminal proceedings or after the perpetrator is convicted. This raises a question on the application of the two common law principles that the defendant may raise as a special plea. Thus, res judicata and lis pendens may be raised as a special plea to prevent the victim of cyber fraud from receiving compensation for damages suffered. This prejudices the victims because some of the consequences that result from cyber fraud are dire to the victim. For example, the victim may loose money, property and may psychologically be affected as a result of cyber fraud. This article follows a qualitative research methodology that is based on an analysis in jurisprudence. Thus, the article looks at section 8 of the Cybercrimes Act, judicial precedent, as well as scholarly views shared by various authors to determine the gap. The author provides a solution, as well as recommendations that will ensure that the victims have a recourse in Civil Procedure. Moreover, there is evidence that proves that cyber fraud does exist in jurisdictions such as the United Kingdom. The article examines the legal position of cyber fraud in the United Kingdom and does a comparative studies between South Africa and the United Kingdom.

Beyond the Basic Law: Interpretive principles protective of fundamental rights in Hong Kong

In considering the protection of fundamental rights in Hong Kong, the Basic Law and the Bill of Rights Ordinance (Cap 383) (BORO) tend to be the dual focus. However, common law principles protective of fundamental rights continue to apply. These include principles of statutory interpretation such as the principle of legality (the presumption that general or ambiguous words in legislation are insufficient to interfere with certain common law rights) and the presumption that legislation is to be interpreted consistently with international treaties. This article considers the role of these common law interpretive principles in Hong Kong, and, in particular, the scope for their application in light of the Basic Law and the BORO. It concludes that the protection of fundamental rights in Hong Kong will continue to focus on the Basic Law and the BORO for so long as the current constitutional arrangements persist. However, the courts ought to take care to pay due regard to the relevant common law interpretive principles, including the stringency of the test of necessary implication where a statutory interference with rights is not express, and the potential for the International Covenant on Economic, Social and Cultural Rights to be relevant to statutory interpretation.

Justice in law as a form of manifestation of Christian normative values

The process of development of various directions of objective scientific analysis of the problems of the theory of state and law is studied; the analysis of transformational processes of Christian-legal traditions in the legal system is carried out. The author argues that the Christian-normative values of Christian traditions are unique religious and social values, as they embody the fundamental principles of civilized organization of social relations in society, their normative requirements. The implementation of Christian normative traditions, principles, values through justice in law contributes to the understanding of law as a means of achieving social stability in public life, embodying the idea of justice in the mechanism of legal regulation of social relationships. The author notes that in modern society, justice, which contains Christian normative traditions determines the unconditional authority of law not only in regulating social relationships, but also in the formation of man as an person, because it contains Christian fundamental values that determine the humanistic nature of law in the practical aspect of regulation public relations. Due to the law, the idea of justice finds its normative manifestation, is protected by the rights and interests of citizens. Without losing touch with morality, religion, justice is a value-moral, spiritual criterion in the process of creating and implementing legal norms. By integrating the notion of justice into the legal system, the socio-moral (spiritual) value of the legal system itself increases. Legal norms promote the spread of justice in society as a basis and value-moral (spiritual) criterion for reconciling the interests of the subjects of social relations. As a universal category, justice includes both the moral (spiritual) aspect (serves as a criterion for evaluating law, as well as the principle and ideal of law) and legal (contains ethical and legal aspects and is a common law principle). The point of view is substantiated that Christian-normative values on the basis of connection, interaction, are the basis of convergence of justice and law. After all, the social nature of Christian-normative values in the legal nature of justice explains justice as an “idea, absolute, requirement”, determines the law in its natural sense. Christian-normative values as a source of justice and natural law, embrace human consciousness, determining the development of legal sense. In addition, justice, which is the basis of many legal phenomena, is in the process of influencing public relations as a special regulator of public relations. Thus, justice formed on the basis of Christian normative principles is an ideal for law. Based on Christian values, justice is important not only as a symbol of good social status, but also as a real goal-setting means of society. That is, it is appropriate to consider justice as a semantic component of the value-oriented and normative-regulatory social system. Key words: justice, legal system, Christian-legaltraditions, Christian values, legal culture, legal consciousness, morality.

The duty to give reasons under Kenya’s Fair Administrative Action Act, 2015 in Kenya: Seven years later

Article 47 of the Constitution of Kenya 2010 has constitutionalised the right to be given written reasons for administrative actions and decisions. The same has been set out in Sections 4 and 6 of the Fair Administrative Action Act 2015. Based on the amber light and public administration theories, this paper argues that the right to be given reasons for decisions taken by administrative authorities has not only been used as a tool to offer legal protection to individuals adversely affected by administrative action but also helps in enhancing good public administration in Kenya. On the one hand, courts of law have considered the right to be given written reasons both as a constitutional ground for judicial review of administrative action under Article 47 of the Constitution and as a remedy available in judicial review as stated in Section 11 of the Fair Administrative Action Act. It has provided affected individuals with a basis to challenge an administrative action and decision through a judicial review process that not only preserves but also develops and progresses relevant common law principles. On the other hand, courts of law have viewed the right to be given written reasons as a tool aimed at enhancing public administration by ensuring that public administrators reflect on the lawfulness, quality, rationality, and fairness of their actions. However, the objective of Section 6 of the Fair Administrative Action Act may not be fully achieved because it does not expressly require public ad-ministrators to give adequate reasons to persons whose rights have been adversely affected by administrative action. Besides, it does not provide the criterion to be used to determine when the departure from the requirement to provide reasons for administrative actions is reasonable and justifiable.

Legitimate land interests and prospects of their implementation in the conditions of digitalization of land relations

Legitimate land interests and prospects of their implementation in the conditions of digitalization of land relations

THE FUNDAMENTAL PRINCIPLES OF RECUSAL OF A JUDGE AT COMMON LAW: RECENT DEVELOPMENTS

The common-law principle that no one should be a judge in his or her own cause is the basis upon which the rule against bias or apprehension of bias was founded. In constitutional parlance, this translates into the requirement that a judge or anyone under a duty to decide anything must be impartial, which is, in turn, the foundation for the recusal of a judge in adjudication. This cardinal principle of adjudication has produced an abundant case law indicating the circumstances in which a judge should, or ought to, recuse him- or herself on the ground of bias or reasonable apprehension of bias in common-law jurisdictions. This article focuses on the fundamental principles guiding the notion of recusal in the common-law courts. There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal of a judge must overcome. The inquiry proceeds no further if this presumption is not successfully rebutted early in the proceeding. The second hurdle is the test for recusal that the facts put forward in support of the allegation of bias or apparent bias must meet. This test is a two-dimensional reasonable standard test of a reasonably informed observer who would reasonably entertain an apprehension that the judge would (not might) be biased towards one party in the case. This test enables a court to determine whether the allegation of lack of judicial impartiality in any given case could lead to the recusal of the judge. The discussion that ensues is based on decided cases selected from specific Commonwealth jurisdictions where such matters have recently been dealt with. Indeed, these cases show that recusal of a judge in adjudication is, in practical terms, the application of the common-law principle of natural justice that a person cannot be a judge in his or her own cause. It is also a clear manifestation of the age-old adage that justice must not only be done, but must manifestly and undoubtedly be seen to be done.

Smart contracts: to regulate or not? Global perspectives

ABSTRACT Smart contracts continue to formulate the backbone of blockchain transactions. After the foundation of the Ethereum protocol, the Initial Coin Offerings, Security Token Offerings, and Non-Fungible Tokens have all relied on smart contracts, with enormous market volume. The broad scope of smart contracts’ (potential) application is undisputed, yet many countries have been silent on the regulation of smart contracts. These same countries, however, have already set some standards regarding crypto assets and crypto asset service providers. We can include Switzerland and the European Union, that has already prepared a draft Regulation for Markets in Crypto Assets, in this first group. Some jurisdictions, such as the UK and the US, have already concluded that common law principles suffice to tackle with smart contracts. The third group, including Italy, has defined smart contracts but has no comprehensive regulatory framework. There is a final group of countries that have chosen not to regulate any aspects of the distributed ledger technology (yet). It is without a doubt that the use of smart contracts will cause problems regarding formation, contract performance, applicable law, jurisdiction, protection of consumers, and personal data.

A History of the Common Law Double Jeopardy Principle: From Classical Antiquity to Modern Era

The double jeopardy principle is a guarantee of individual liberty that has ancient origins. The development of the principle has been incremental, and its meaning has varied through the ages. The research question and attending analyses presented in this article advances an examination of the evolution of the double jeopardy principle in historical context. Through doctrinal analysis the hypothesis advances the supposition that the common law principle was firmly established by the post-medieval period. Through an examination of landmarks in the development of the principle the article examines theoretical underpinnings and considers the extent to which the criminal justice system developed a public prosecution model of criminal justice. The incremental development of this fundamental principle of criminal justice can be explained in terms of the deficiencies in medieval criminal procedure, prejudices and practices of medieval trial procedure and punishments imposed on convicted offenders. Jurisprudence on the application of the principle indicates significant developments following the Restoration. Keywords: Double jeopardy; Ne bis in idem; Autrefois acquit; Autrefois convict; Criminous clerks; Restoration

Application of the principle of legal significance when considering administrative cases

The principle is the starting point for the analysis, interpretation and application of any system. The principle is substantiated by the fact that in the administrative sphere it is common to change the interpretation of certain legal norms with a corresponding change of orientation, which has a normative character, affecting situations that are already recognized and enshrined in force. The increasing proclamation of the principle of legal certainty, which is becoming more and more widespread, sometimes creates exaggerations, sometimes unjustified risks, which imposes its delimitation in accordance with the current legal order. Thus, through dogmatic analysis, it is proposed to classify the content of the principle of legal certainty into two conceptual cores, namely: certainty and stability. In this aspect, the validity of legal norms, effective projection and content of legal norms is considered, while the institutions of acquired law, perfect legal act and res judicata, the subprinciple of protection of legitimate expectations with their respective manifestations are studied under the prism of stability.
 The principle of legal certainty, also known as the principle of legitimate expectations (protection of trust), is one of the basic sub-principles of the rule of law, which is one of the most important principles of common law. The principle of legal certainty or stability of legal relations prevents unjustified deconstitution of legal acts or situations, even if at the time of its constitution there was a discrepancy with the legal text. Thus, the importance of legal certainty is aimed at protecting the expectations of citizens, ie the public manager must use past practices and precedents of public administration, which made possible and created expectations of citizens. The principle of legal certainty presupposes the existence of a coherent mechanism capable of ensuring the rule of law and serving as a standard for legislation and the judiciary. In a broad sense, the principle of legal certainty is a set of requirements for the organization and functioning of the legal system in order to ensure primarily a stable legal position of the individual by improving the processes of lawmaking and law enforcement.

Crafting a Right to Water: A Jurisprudential Analysis

The Supreme Court has often reiterated that right to water is a part and parcel of a right to life. Thejudicialization of right to water has raised fundamental questions about the feasibility of culling out ajusticiable fundamental right to water from a social right. While the Jal Boards regulate water supply,sewerage and drainage there are other statutory bodies allocated with the task of maintenance of waterbodies. The water policy prioritizes amongst the various uses of water. The common law principles do notserve the present societal needs. Questions of ownership give conflicting results. Different norms applicable,to surface water and underground water, lead to conflicts. Numerous international legal instruments priorto the General Comment number 15, had not specifically mentioned a right to water. Whether the omissionwas inadvertent - being obvious not requiring specific mention, or implicit and commensurate within theterm ‘food’ or as part of customary international law, or was it because it was not a pressing concern then,needs clarity. While drastic problems call for immediate actions in the form of laws, it is necessary that thelaws be consistent with the nature of the subject matter it seeks to regulate. This research paper addressesthe problem of identifying the various provisioning requirements and feasibility, in case the right to wateris considered as a human right, or granted as a fundamental right or a statutory right. It seeks to comparethe implications arising out of holding a right to water as a human right, a fundamental right or a statutoryright. While the feasibility of water as a fundamental right is in itself a question, to treat it as a human rightleaves it to the whims of the State with only small incremental developments as a result.