Initially it may seem odd to many people to learn that a large proportion of our laws were not made by parliaments, but rather by judges. However the doctrine of precedent, combined with a commitment to judicial restraint, and combined also with the capacity of judges to rule in equity if the common law was inadequate, developed over time a consistent and sophisticated body of law which was that exported around the world during the period of colonial empires. Many of the characteristics of our legal system have their beginning in this gradual, incremental process under which judges took their lead from other judges in order to develop a coherent legal system. As we will note in this Chapter, the common law has advantages and disadvantages, but it was exported around the world by England during the age of colonialism, and has stood the test of time as a legal methodology. It remains in use in a range of nations as distinct as Australia, the United States, the Philippines, Kenya, India, the Cook Islands, and Canada. It is one of the world’s great legal systems.

In this chapter, we set out a very brief history of English and Australian law in order to provide you, in broad strokes, with an outline of the historical background against which our modern law has developed. You should not consider this chapter merely a brief outline of old stories. Ask yourself, each step of the way: how did this era help to set up our current era? What aspects of modern life can be said to be affected by these aspects of our history? What should we be learning from this history? What should be preserved? And what should we ensure never happens again?

This chapter defines traditionalism in American constitutional law, drawing from the rich deposit of the common law as an analogy to what the Supreme Court is now doing in constitutional law. It identifies traditionalism’s components in three elements: (1) political practices (2) of long duration that (3) are given presumptive authority in determining the law of the Constitution. It concludes by arguing that the method is actually of much longer lineage than one might think if one only looked at Supreme Court cases of the last few years.

This chapter undertakes a detailed comparison between traditionalism and other theories of constitutional law. It first distinguishes the activity of constitutional interpretation from that of determining what the law of the Constitution is. Next, it compares originalism and traditionalism, and after that nonoriginalism and traditionalism. The upshot is that traditionalism can certainly be consistent with at least some varieties of originalism, but the ends of the theories are different. The same is true of most nonoriginalist theories, which are largely theories of interpretation. The chapter concludes by considering various cases of possible conflict between text and tradition to see which has, historically, tended to trump the other. The historical examples suggest that tradition holds its own in such cases. But the conflict is unlikely to come up very often, for reasons the chapter describes.

Negligence governs the legal obligations individuals and organisations owe to others to avoid causing harm. Once liability is considered, however, there are defences available that can reduce or even eliminate a defendant’s responsibility. These defences reflect the fact that the blame for that harm cannot – or should not – always be laid solely at the defendant’s feet and that the actions of the plaintiff themselves can affect legal outcomes.

In this chapter, we’ll explore the key defences to negligence, such as voluntary assumption of risk (volenti), the statutory defence provisions that exist in various jurisdictions and contributory negligence. By examining the legal principles and significant cases behind these defences, you’ll gain insight into how the courts deal with these defences and the impact they can have on liability.

Chapter 2 focuses on discussions of faith in John Donne’s religious prose. Donne often addresses such questions by turning to legal discourses. Processes of evaluating forensic testimony provide useful structures for measuring probability or certainty in evidence and the assent that it generates. This is exemplified in Donne’s Pseudo-Martyr, which relies on widely recognised rules about forensic testimony to discuss pressing questions regarding belief and its legitimacy in post-Reformation England. The chapter then shows how Donne adapts this legal handling of belief to address questions about salvation and certainty for a variety of audiences. To lawyers at Lincoln’s Inn, Donne uses the technicalities of civilian law to support and critique post-Reformation understandings of soteriology. To a broader congregation at St Paul’s, he deploys common law evidentiary procedures to show that, to a limited but helpful extent, the evidence of salvation can be apprehended through legal methods.

The criminal law comprises a state response to wrongdoing on the part of the population, proscribing conduct that lies outside of the normal expected conduct of citizens. As such, the criminal law seeks to regulate socially transgressive or unacceptable (criminal) behaviour.In providing a framework of rules to address these behaviours, the criminal law actually comprises two discrete branches: substantive criminal law and procedural criminal law. This chapter is divided into two main sections. Section 1.2 looks at the nature of the criminal law; its purposes, limits and sources. This part examines a number of important issues, such as the purposes of the criminal law, the legitimate limits on its scope and its sources. Section 1.3 examines the notion of criminal responsibility, looking at who may be held liable for a criminal offence and the principles that underlie the state’s obligations in proving an offence.

This coda takes the form of a sample judgment that rewrites Baron and Others v Claytile (Pty) Limited and Another [2017] to tangibly illustrate the promise of Alter-Native Constitutionalism. Contrasted with the real-life judgment issued by the Constitutional Court, which relied on liberal approaches, the Alter-Native ‘judgment’ gives willing courts the necessary tools to enforce the ‘property’ rights of ‘non-owners’ and thus highlights the opportunities for equitable solutions the Court has missed, including in its real-life judgment. Emphasizing the importance of robustly applying Ubu-Ntu (rather than the insipid ‘ubuntu’ that scholars and the Court have substituted for it) and applying Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation developed earlier in the book, the opinion demonstrates existing possibilities for recognising shared rights and promoting housing as a relational, spatiotemporal ‘existence’. By reinterpreting constitutional and legislative provisions to respect indigenous onto-epistemological perspectives on land-as-housing, the Alter-Native opinion demonstrates a transformative approach to ‘property law’ that inherently critiques the Constitutional Court’s interpretation of the ‘property’ and ‘housing’ clauses largely to the exclusion of vernacular law. This Alter-Native opinion thus presents a literally embodied argument for the need for broadening restitution, addressing both enduring injustices and future possibilities over multiple generations.

This chapter characterizes the evolution and politicization of corporate regulation in Nigeria and crafts a theory of professional interest group politics in Nigeria. The chapter outlines how corporate regulation in Nigeria was politicized during the era of Ibrahim Babangida’s Structural Adjustment Program. In particular, the drafting process of the Companies Decree of 1990 provided a previously unparalleled opportunity for independent manufacturing, services, professional, and labor organizations to contest the revision of the most fundamental provisions of Nigerian corporate law. Informed by this history, the chapter advances a novel theory of professional interest groups in Nigerian politics, which are industry-based organizations that seek to advance their policy objectives at the federal level. Drawing their membership from across traditional regional, ethnic, and class boundaries, they are internally hierarchical and their less-prominent members also benefit from the achievement of shared regulatory objectives. Nigerian professional interest groups exercise a tangible influence over federal policy and its implementation.

Rights are at home in law-courts. In popular understanding, they seem like attributes attached to individuals who are found in isolation. When carefully examined, however, they can be characterised as aspects of relations in the sight of a tribunal (which may, of course, be conscience or public opinion or God). They have their being, it might be said, within a field of vision - the version of reality that the tribunal sees - in which a right apparently located in one person must have a dissimilar correlate located in another. If, when the information that counts as fact in, a court is in principle willing to do X for A against B, it cannot simultaneously have the same willingness to do X for B against A. On the account definitively worked out by Wesley Hohfeld, my claim must have its correlate in someone else’s duty, but even the simplest privilege (my right against the world to take a walk into the park) has correlates in ‘no-rights’ attaching to the indefinite range of other individuals who might take legal action with a view to stopping me.

This chapter provides an introduction to the core concepts of US law, for those with an HCI background but not a legal background. The chapter covers the history of U.S. law, the basic constructs of the U.S. legal system, the core sources of legal rules: constitutions, statutues, regulations, and case law, differences between civil and criminal law, the differences between law and policy at the federal versus state level, searching for and using legal resources, and how to apply basic legal principles to HCI research.

If Edward I had died in the course of his conquest of Wales in the early 1280s, his successor would not have been the notorious Edward II, but King Alfonso I, born at Bayonne in 1273, and named after his godfather, the queen’s brother and king of Castile. In fact, Alfonso was to die a child in 1284, just as Edward’s first two sons had done, but the details of his life are a reminder that English kingship was not just – or even, at times, very – English. The kings of England, descended from Normans and Angevins in the male line, wished to be leading figures on the European stage, and they jealously defended lands, rights and connections across the continent, as well as in these islands.

At his coronation the monarch swore to preserve the peace of the kingdom, maintain the laws and customs of the realm and diligently do justice to his subjects. Upholding these tenets underpinned the successful exercise of kingship. Indeed, the quality of the king’s rule was frequently judged contemporaneously and historically by his record on justice. Yet, while the king did have personal input and was ultimately responsible for issuing legislative decrees and upholding law and order, operationally this was not something he could do on his own. The enormous task of day-to-day judicial administration was delegated to a mixture of trained judges, lawyers and royal officials, who worked alongside less specialised men of law, shire bureaucrats and a pool of borough merchants and county gentry. These assisted the crown by acting on a variety of local commissions and as constituency representatives in parliament.

Employees who have been dismissed may bring a claim under the common law for wrongful dismissal where the dismissal was a breach of contract. Compensation for wrongful dismissal is usually limited to compensation for a period of reasonable notice of dismissal. Statute provides minimum periods of notice that must be given. Compensation for failure to give proper notice can be avoided if the employer can demonstrate that the employee committed a repudiatory breach of contract. Claims for compensation for other kinds of breach of the terms of the contract may be available, but there can be no compensation for breach of the implied term of mutual trust and confidence in the context of dismissal. Nor can damages be obtained for breach of a contractualdisciplinary procedure; an employee can only obtain an injunction to require the employer to follow the correct procedure. In general, however, injunctions against dismissal are unavailable because of the breakdown of mutual trust and confidence between employer and employee.

Chapter 9 makes the case for critical changes in chilling effects law and doctrine based on the new understanding advanced in this book. The author argues, among other things, that judges should no longer remain skeptical of privacy chilling effects; that chilling effects doctrine should no longer privilege legal and regulatory forms of chilling effects over others; and that standing doctrine and other areas of law should also be reformed to accommodate this new understanding of chilling effects.

This chapter has several major themes. It begins by documenting how historians are rethinking the origins of the United States, emphasizing its contingent nature as a union of sovereign states rather than a nation, and the roots of that novel confederation in the complexities of the British imperial system. In that context, it then traces the fluidity and contingency of rights available to the citizens of the United States after the Revolution. Finally, it examines how, following the victory of the Jeffersonian coalition in 1800, those rights became structured and limited along racial lines, creating a “patchwork nation” of distinct racial orders.

While the UK may not have a single, codified constitution or Bill of Rights instrument, it nevertheless has a long history of rights protection under the common law and through various legislative enactments including, most notably, the Human Rights Act 1998 which gives effect in domestic law to the core rights enshrined in the ECHR. In this chapter, we examine how rights are protected (including their enforcement) in domestic law in the UK, paying particular attention to the principle of legality and the powers conferred on the courts under the Human Rights Act 1998. Common law rights continue to develop and evolve alongside the Human Rights Act and they still act as a vehicle to protect rights and fundamental values.

Many eighteenth-century theorists of common law attributed its legitimacy in part to its connection to a particular location and history. However, as Britain incorporated Scotland and expanded its imperial reach abroad, British governors often attempted to carry common-law practices to new locations. In his fiction and nonfiction, Sir Walter Scott advocates maintaining Scotland’s common-law system but worries that the very cultural and legal distinctiveness he demands for Scotland prevents Scots from receiving justice under British law. Portraying the consequences of the Norman conquest in Ivanhoe (1819) and internal and external colonialism in Chronicles of the Canongate (1827), Scott demonstrates the difficulties of reconciling the role of custom in common law’s legitimacy with a centralizing imperial state. In both works, the victors’ biases toward their own law mean that history and historical fiction no longer suture past and present, and that law imposes tragedy as well as order.