Abstract In this article, the writer discusses and compares commonlaw and civil law. Further, the writer discusses international dispute resolution.
From the Paper "This section of the report will compare and contrast the common law legal system used in the United States, England and Canada with the civil law system that is used in most of continental Europe. Common law is described by Hall as the body of judge-made law that was administered in the royal courts of England King's, Queen's, Bench, Common, Pleas Exchequer and Exchequer Chamber in contrast with other bodies of English law administered in different courts such as equity admiralty canon ... "
Tags:law, international disputes, commonlaw, civil law
Abstract The paper discusses commonlaw and explains its interpretations and many applications. The paper examines the history of the development of commonlaw, and explores its connection to and the differences between equity law. The paper further details commonlaw and explains it as an adversarial judiciary system of laws. The paper continues by explaining equity law and its origins. The paper concludes that in 1873 courts of law and equity were united in England. In the United States, courts of equity also developed, however there was no distinct separation between courts of law and equity in the federal system.
Outline:
Introduction
What is CommonLaw?
What is Equity Law?
Differences between CommonLaw and Equity Law Conclusion
From the Paper "The common law is made out of the dust of conflict - the Judges will have their feelings powerfully evoked on behalf of the various dramatis personae. They will experience emotions from appreciation to indignation and from approval to disapproval. It is only against that vivid background that the rationales for the decisions of cases are created. Common Law Judges do not often sail into the oceans of abstraction."
Tags: fraud, breach, of, confidence, criminal, matters, dramatis, personae
Abstract This paper discusses the role of the sheriff in England and how that role changed with the development of commonlaw. The paper first discusses the impact of the Writ of Right on Henry II's power and on the role of the sheriff. Next, the paper discusses the history behind the changes to commonlaw in the time of Henry II and focuses on how the sheriffs were integral to the development of the commonlaw at that time.
From the Paper "Henry eventually rehired only seven of the fired sheriffs. Henry did not look to the traditional wealthy landowner who would normally inherit the office to replace these sheriffs. Overturning tradition, he instead hired professional administrators who had been trained in the Exchequer. These new sheriffs were professionals, loyal to Henry, who were without a political power base and therefore politically unimportant. These new sheriffs exemplified the transformation of the common law during the reign of Henry II. Loyal to a centralized power and personally unimportant, they were agents of the royal justice, which could now legitimately be referred to as the common law. These sheriffs were integral to the development of the common law under Henry II."
An analysis of the history and application of systems of law in the past and present and the application of capital punishment in the United States today.
Abstract This paper examines the history and practice of the commonlaw system and then looks at civil law and its basis and application. The paper compares these two systems of law and discusses how different countries employed different systems of law in the past and still do in the present. The paper then focuses on the issue of capital punishment in the United States, in terms of its history and current practice.
From the Paper "Currently, it is recognized that the use of capital punishment could not be deemed common practice in the United States. On average, there has been one execution for every 700 homicides carried out. However, there is a great deal of variability in rates of executions from state to state. For example, Nevada and Texas have a fairly high rate of people who have been sentenced to die via execution. A 2004 study found that Texas executed a percentage of convicted criminals that was nearly four times higher than the nationwide average, while it was discovered that California had put to death only 1% of people who had been sentenced. In the United States, about three- quarters of the states have held onto the death penalty as a form of punishment. However, nearly two-thirds of all of the executions that have been administered since 1976 have taken place in only six states: Texas, Virginia, Florida, Missouri, Louisiana, and Oklahoma. In the minority for those falling victim to the death penalty are women, with African Americans bearing the brunt of the rates of execution (Ferrall)."
Abstract This paper discusses three major legal systems. The legal systems discussed are: The CommonLaw system, the Civil Law system and the Islamic Law system based on Shari'ah. The CommonLaw system is discussed in relation to the United States and England while the Civil Law system is discussed in relation to the European continent. Finally, Islamic Law is discussed primarily in terms of its application throughout Islam.
From the Paper "The nature of law has been a hotly contested subject ever since Hammurabi first had his code carved in stone circa 1775 B.C. (Deffains & Kirat, 2001, p.19). Since then, law has been subjected to myriad interpretive analysis, written, rewritten and canonized in various ways: Islamic Law associated with Shari'ah, the Common Law of England and the United States and the Civil Law structures found across most of Europe. The only common dialectical thread through all these historical bodies of law and legal systems, both current and past, is that law is not an exact science."
Abstract This paper explains that American commonlaw, which formed the basis for later legislatures, set the "age of sexual consent" at ten; but, today, the laws are different in different states: California, Oregon, Arizona, and Wisconsin set age 18 as the minimum age for consensual sex (for girls); most other states set age 16 or 17. The author points out that, recently, the American Civil Liberties Union (ACLU) has filed a case in a Kansas appeals court demanding the reduction of the age of consent back to 13, as was originally defined in the ?CommonLaw?. The paper stresses that 'age of consent law' has an important restrictive role in our present day society and serves to protect young children from undue exploitation.
Table of Contents
Introduction
A Brief History
The Present Law Controversial Reactions
Conclusion
From the Paper "Topics of such controversial nature carry arguments from both groups. One the one hand are the parents, social reformers and religious leaders who are concerned about the declining moral values and the health disorders that will result from premature sexual indulgence. This group of people is trying to raise the limit of the age of consent and hope that a legal barrier would prevent what they perceive a moral disaster and protect young and innocent children from exploitation. On the other hand are those (ACLU) who revolt against the law as an intrusion into children's personal rights. These groups consider the restrictive laws as ?a cogent and passionate critique of the war against young people's sexuality.? "
Abstract This paper examines how there are four types of legal systems in existence in the modern world: civil law, commonlaw, customary law, and religious law. It look at how all four types of legal systems have lengthy histories and share some common elements and how one can see the overlapping influence of different legal systems in each different type.
Outline:
Legal Systems
Transnational Crimes
From the Paper "Those countries associated with the common law are based on precedent and find their roots in English law. Common law systems give their judges the power to establish law and lower courts are required to follow those decisions. Therefore, the source of the law is custom and even in areas where there are no statutes there may be guiding laws. Legislatures continue to have the power and ability to make laws, but courts have the power to make law, not simply interpret it. More importantly, though the laws in common law countries have often been written and codified, it is the fact that judicial decisions initially formed those laws that separate common law countries from civil law countries. "
Abstract This paper discusses how murder has been considered a crime since the beginning of written law and how, through the years, commonlaws regarding murder have been adapted according to the needs of society and state. It examines the history of elements of murder under historical commonlaw, with a focus on current statutes for murder in the state of Idaho. Further, it compares the elements of each, and discusses possible reasons for differences and similarities. Finally, the paper suggests new changes to current laws that may be needed due to current societal needs.
From the Paper "Further statutes show even more divergence from common law. IC 18-4003 clearly lays out all forms of murder that qualify for first-degree. Remember that, in common law, first degree murder required only premeditation. This statute is very clear, and does not solely include the premeditation portion of common law elements. In IC 18-4003, any murder perpetrated by poison, torture, or lying in wait, or any murder that is deliberate and premeditated is classified as first-degree. However, the statute also includes any murder of a police officer, by a person previously convicted of murder, committed during the commission of another felony, committed while incarcerated, or committed while attempting to escape a penal institution (IC 18-4003)."
Abstract This paper is a careful examination of the similarities and differences in the business and legal climates in the UK and U.S. It discusses how the commonlaw heritage of most of the countries in the United States (Louisiana's law are based largely on the Napoleonic Code) and the United Kingdom ensure a number of similarities in the manifestation of contemporary laws. It points out, however, like the electrical outlets and doorknobs in use in both countries, a sufficient number of differences exist to make direct comparisons between the two nations difficult but interesting. It explains how it has been shown that traditional contract laws in the U.K. and U.S. have both developed rules and principles that control the voluntary assumption of obligations, regulating the performance of obligations so assumed, and providing sanctions for failure to perform. The writer concludes that both countries' cultural traditions are reflective of the respective country's heterogeneity and its central importance in world affairs over the past several centuries.
Outline
Introduction
Review and Discussion
Conclusion
From the Paper "The United Kingdom and the United States share a common heritage, language and culture. Even the U.S. Constitution itself was significantly influenced by the political concepts emerging from the U.K. at the time. Today, the two countries are staunch allies in the war on terrorism, and both countries continue to enjoy high levels of trade with each other. Notwithstanding the many commonalities between the two English-speaking nations, a sufficient amount of dissimilarities exist and a better understanding of these differences can provide some insight into how these countries engage in business today."
Abstract This paper discusses how the law regulates the number, content, creation, transfer and extinction of absolute rights and how this favouring of certain property arrangements is known as the numerus clausus concept which is an important expression of the fundamental principle of unity that underlies modern property law. It looks at how the numerus clausus concept still plays an important role in both civil law and commonlaw systems today and how the key legislative justification for its survival lies with the fact that limiting legal categories creates more legal security and reduces information costs.
Outline:
Introduction
The Numerus Clausus Concept
Property Rights - in Rem Nature
Property Rights - Communicative Function
Property Rights - Massive Generative Power
Property Rights - Optimal Standardisation
Property Rights - Impersonal Nature
Property Rights - Verification Function
Property Rights - Bipolar Character
Property Rights - Fragmentation
Conclusion
From the Paper "Ultimately, Merrill & Smith propose that the numerus clausus concept leads to an 'optimal standardization' of property rights at the point where the marginal frustration and measurement costs (MC) is equivalent to the marginal benefits (MB) i.e. MC = MB. This means that there will be an optimal number of forms that will keep costs and benefits in the balance. On the contrary, if the continual availability and creation of a variety of new forms was allowed, this will be counter cost effective, where MC will increase and MB will decrease with each new form because a few property forms suffice as building blocks for the complex transactions a modern economy requires."
Abstract Development of the roles of the English judiciary and the legislature. Includes observations of the impact of the Human Rights Act and subsequent loss of sovereignty to Strasbourg. Full dissection of the relationship between statute and the CommonLaw and the part that morality/justice should play in the law courts. Theoretical questions from legal theoreticians such as Dworkin and Hart discussed.
From the Paper "Answering this question involves discussing: what other forms of law (apart from statutory text) judges should refer to; which form of law takes precedence; how a judge should interpret a statute, especially if it is unclear or ambiguous; and what he is to do if he cannot operate within the bounds of existing statutory texts. These issues induce us to look at the use and scope of a judge's discretion. A consideration of the use of the word MUST is also needed. Must a judge operate in a certain way? Or are there merely guidelines as to how he should operate?"
Abstract This paper discusses the similarities and differences between American law and Jewish law (the Halakha) in terms of change, obedience and morality. It discusses each legal systems' approach to obeying the law, law and change, and the nexus between law and morality.
From the Paper "In discussing the idea of law legal scholar Dennis Lloyd stated that contemporary law in Western society is very much the product of influences emanating from the ancient Greeks and Hebrews who individually brought a ..."
Tags: American law, Jewish law, commonlaw, Halakha
Abstract This paper analyzes the history of commonlaw assault and battery elements and it compares those with the statutes developed for one of the states in America, Idaho. The paper looks at specific cases to discuss the developments. Additionally, the paper discusses possible reasons for the changes and then examines future alterations in terms of modern society.
From the Paper "The definition of aggravated battery also differentiates from common law, which has no such definition. Idaho statute IC 18-907 defines the crime as someone who, in the course of committing battery, commits great bodily harm, disability, or disfigurement, uses a deadly weapon, uses a chemical, or attacks a pregnant female and causes harm to the fetus. The statute continues to state those performing consensual abortions, giving appropriate medical treatment to a pregnant female, or a woman who injures her own embryo or fetus, is not to be subject to aggravated battery (IC 18-907). It is clear through the very detailed description of instances regarding pregnant females that such a population was a primary focal point of this statute."
Abstract The paper notes that the Estoppel doctrine is in a state of flux, with differing judicial proponents arguing over the existence and need for 'but one doctrine of Estoppel by conduct' within the Australian judicial system. This paper establishes the origins and elements of the common and equitable Estoppel and illustrates that they are, and should remain, separate. The paper also defines the posited unified doctrine, and the subsequent inconsistencies and issues thwarting its judicial acceptance. These include significant differences between the common and equitable Estoppel by conduct doctrines , their underlying purpose, and their remedial application. The paper submits that, until proponents of the unified doctrine refine and reconcile these differences, this doctrine remains largely theoretical, lacking any real judicial consistency.
The paper uses MLA style footnotes but does not include a works cited page.
Outline:
Introduction
Development of CommonLaw Estoppel
Development of Equitable Estoppel
The Unified Doctrine of Estoppel
Estoppel as an Evidentiary Remedy, or a Separate Cause of Action
The Underlying Purpose of the Two Doctrines
Remedial Differences
From the Paper "Their honours held that a mere intention to form a legal relationship surpassed the need for a pre-existing relationship , which was further refined in Verwayen , discarding this requirement altogether. In Verwayen's case, the plaintiff was seeking to estopp the commonwealth from raising a grounds of defence which they had represented they would not utilise ; a representation which was relied upon in engaging legal council. Their honours found that no form of legal relationship could be formed, but held that an 'equity' protecting them from this defence remained.The equitable doctrine can also be utilised as a separate cause of action . Justice Mason and Wilson distinguished Holmes J's contention that the doctrine of consideration would be undermined , relying on the notion of 'unconscionability' as permitting intervention and creation of equitable rights."
Abstract While the United States and Australia are literally a world apart geographically, the two countries share much in common today, including the English language; a legacy of British influence, customs and traditions; a comparable constitution; and, more importantly for the purposes of this discussion, the commonlaw. The research shows that the respective contract laws that evolved over time in these two countries share this heritage, but some important differences have emerged that can make the difference between a successful contract and a failed one. Given the importance of timely and equitable adjudication of contracts of all types today, though, it is therefore important to understand when these legally binding instruments can be set aside and for what reasons. To this end, this paper provides the relevant background and a discussion of how and why contracts can be set aside in Australia and the United States. This is followed by a summary of the research and salient findings in the conclusion.
Outline:
Introduction
Review and Discussion
Background and Overview
Contract Law in Australia and the U.S. - Current and Future Trends
Conclusion
References
From the Paper "In fact, the legal system used in the United States and in most of the member states of the Commonwealth of Nations, including Australia, in based on this body of common law. As a result, common law is differentiated from formal rules that were developed by the separate acts of equity, to statute law (i.e., the acts of legislative bodies), and to the legal system derived from civil law that is now more popular in continental Europe and elsewhere (Kiralfy 2006)."
