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Property law is increasingly confronted with limits and modifications arising from environmental and social contexts. The objective of this chapter is to highlight how property law can provide answers to environmental challenges, by adapting several of its fundamental concepts to the polymorphism of environmental and social issues. Starting with a study of the theoretical movement of Earth jurisprudence, the chapter suggests that it is possible to consider Nature as a subject of legal interests, allowing it to acquire legal standing. It also suggests that it is necessary to reconceptualise property and its narrative to develop, in both civil and common law, a more limited, relational and functional conception of property. In addition, the polymorphic heritage of property law makes it possible to call upon the civilian concept of patrimony, in its symbolic or technical function, to protect the environment.
Remedies Cases and Materials in Australian Private Law presents a selection of cases and legislation to introduce students to the remedies available under Australian law. It offers the depth and context required to understand and analyse the application of private law remedies. Developed to accompany the second edition of Remedies in Australian Private Law, and following its accessible and systematic structure, this casebook contains carefully curated extracts from landmark cases, legislation and secondary sources. The selected extracts offer a comprehensive yet concise guide to the application of remedies. Each chapter includes clear explanations of topics and links to material in the principles text, along with flowcharts and diagrams to summarise complex cases and concepts. Review questions encourage students to analyse decisions from important cases and test their knowledge. Written by an expert author team, Remedies Cases and Materials in Australian Private Law is an invaluable resource which enables students to understand remedial law.
This chapter considers the law of civil remedies: the definition and nature of ‘remedies’ and the relationship between remedy and right. It provides extracts which discuss the ongoing debate about whether judges should have discretion in the remedies they grant. It considers the nature of the common law and equity divide in Australian law as expressed in case law and in academic discussion. Finally, it outlines a functional approach to remedies.
[31.1] Australia’s international obligations are not enforceable through legal action by a person in Australia unless those obligations are incorporated into domestic legislation. If a statute does incorporate all or part of an international agreement, then, subject to a contrary intention in the statute, it is a principle of interpretation that the words in the statute are presumed to bear the same meaning as they do in the international agreement. However, even where a statute does not incorporate text from an international agreement, Australia’s international obligations may still influence the interpretation of domestic legislation. A long-established common law principle provides that, in cases of ambiguity, a construction of a statute that is consistent with Australia’s international obligations should be preferred to a construction that is not. This refers to Australia’s obligations at the time of enactment of the domestic legislation.
[2.1] Contemporary statutory interpretation law involves, broadly, consideration of the statutory text, taking account of its full context and having regard to its purpose. These three concepts have loosely existed in statutory interpretation law for centuries, providing the basis for determining the legislative intent of a statute to varying degrees. This chapter considers the relatively recent history of these key concepts, starting at the beginning of the 20th century. Having some basic knowledge and understanding of this recent history enhances understanding of contemporary concepts and provides historical context to the current law and older cases. Following federation in 1901, Australia continued to be bound, and influenced, by English law. The English approach to interpretation placed considerable emphasis on the grammatical meaning of text, with limited regard to context and purpose.
[30.1] This chapter examines the use of binding and persuasive precedent in the interpretative task. Precedent here refers broadly to prior judicial decisions of courts on the meaning of particular legislative text, rather than precedent on the common law principles of statutory interpretation.The doctrine of precedent generally applies to statutory interpretation cases in the same way as it applies to common law cases. But there are some special considerations due to fundamental interpretative principles.
[22.1] This chapter addresses the common law where it is part of the history of an Act and so forms part of its wider context. This is distinct from using common law as a precedent, or as part of the wider contextual surrounding law.
[41.1] A statute has extraterritorial operation if it operates on, or purports to regulate, occurrences or conduct that occur either wholly outside the territory of the enacting legislature (whether federal or state), or partly within and partly outside the territory.
[8.1] The law of statutory interpretation directs us to ascertain the ‘purpose’ of an Act when construing a provision of that Act. This is one of the few general principles of statutory interpretation law that is the subject of a legislative mandate, though the common law has developed an equivalent principle. The mandate is that we must have regard to the purpose of an Act and choose the construction that promotes or best achieves that purpose. This does not warrant neglect of the statutory text or context, but instead requires the interpreter to have regard to the purpose in the context of the broader analysis of text and context required by the rules of statutory interpretation. Sometimes the purpose will be critical to the task of attributing meaning and sometimes it will be of little value. The value that purpose can provide to the task may depend on the degree of specificity with which it can be expressed. Many Acts embody multiple purposes or the purpose of the Act may be general. For these reasons, the purpose of the provision being construed can be more helpful for the interpretative task than the purpose of the Act as a whole.
‘ The inns of court man that never was studient’ argues that the contemporary stereotype of the idle and dissolute young inns of court gallant with more interest in playgoing than reading law reports, while doubtless exaggerated for moral and satirical effect, is corroborated by an abundance of biographical evidence. It also reflects two prime causes of student delinquency and disinclination for legal studies: lack of supervision and the intractability of the common law as a subject of study. ‘Guides to Method’ surveys the legal literature available to students, concluding that it offered little assistance to those attempting to navigate the law’s complexities. ‘Lay and Professional Legal Knowledge’ emphasises the gulf between the practising barrister’s expertise and the kinds of legal knowledge which most laymen were likely to need or possess.
Yet members acquired and exercised a remarkably wide range of non-legal accomplishments and skills. ‘Accomplishments and the Decline of Creativity’ argues that the inns did little to encourage such activities, especially after c.1615. ‘Varieties of Learning’ surveys the remarkably diverse intellectual life of the early modern inns, while the closing section ‘Achievements, Failures, Prescriptions’ evaluates their diverse roles as educational institutions, and the few contemporary proposals for their reform.
After an introductory excursus on the concept of the inns as early modern England’s third university, this chapter outlines the form of legal instruction which they provided by means of oral ‘learning exercises’, notably case-putting in moots and other exercises involving the argument of hypothetical cases in law, and ‘readings’ or lectures at both the inns of court and chancery.
The second section (‘The State of the Learning Exercises to 1640’) considers the supposed decline in the performance of exercises. It argues that even though they may have been rendered largely obsolete by the advent of the printed law-book, there is little to suggest that they were not generally performed in a conscientious and regular fashion before the outbreak of the civil war. But it was one thing to preserve the system as a going concern, quite another to revive it after the disruptions of the 1640s and ‘50s.
After outlining the motivation for a second edition, this opens with a brief account (‘Origins’) of how the book first came to be written and published. It then proceeds to discuss (‘Continuities and Changes’) the 1960s-early ‘70s historiographical context in which it was created and its positive reception on first publication. Some criticisms, questions and suggestions raised by readers and reviewers are also outlined and discussed. The following section (‘New Ways and New Work’) canvasses the impact of the digital revolution on scholarship in the humanities and social sciences, together with the burgeoning of specialised research, and explains how the large body of new work bearing on the history of the early modern inns has been accommodated in the following text. The final section (Future Directions) looks at challenges and opportunities for further research on the inns, addressing a wide range of questions and topics of interest to both general and legal historians.
While guilty pleas are the primary mode of criminal case dispositions across different legal jurisdictions, this topic remains an understudied area. The assumption is that defendants are 'playing the system' and that a sliding scale of sentence discounts is necessary to encourage early guilty pleas, which offer utilitarian benefits of efficiency. These assumptions lack a solid empirical foundation. This book offers a comprehensive investigation of how the timing of guilty pleas affects various facets of the criminal process, from the factors that affect this timing, to the effects that the sliding scale of sentence discounts have on sentences and public opinions about them. It also draws comparisons between Western and Asian legal systems, specifically those of England and Wales and Hong Kong. This book is addressed to scholars, legal practitioners, policymakers and those interested in criminal justice, socio-legal studies and empirical legal research.
Modern human rights instruments reflect earlier transformations of natural rights into constitutional rights. The effect of this transformation was most apparent in the intertwining of natural rights with emerging conceptions of the separation of governmental powers. For this to take place, early modern natural law theory needed to abandon its defence of absolutist forms of government and embrace ideas developed within the common law. This chapter traces the progress of this surprising marriage. It shows how the concern of common lawyers to secure freedom under law by separating governmental powers came to be justified increasingly in terms of natural law, rather than by reference to English constitutional history. This discursive shift was given political expression in the American revolution and finally adopted into Immanuel Kant’s natural law theory as a requirement of practical reason. The essentially collaborative understanding of the relationship between legislature and judiciary which emerged is still of value in the debate between modern-day natural law theorists over the role of judicial power in the protection of human rights.
This chapter outlines three positions on the desirability of a marriage of the natural law and natural rights traditions: (i) that natural law and natural rights may be united without any recourse to revelation; (ii) that natural law and natural rights may be united but only by recourse to revelation; and (iii) that any form of union between natural law and natural rights should be avoided as contrary to the common good and the well-being of the City of God. It is argued that the third position is the preferred on the grounds that the natural rights tradition is difficult to translate into a non-individualistic, communitarian framework. Social bonds and civic ties revolve primarily around mediating institutions such as the family and cultural, educational, and sports associations, not around the machinery of the state and abstract concepts. Unlike Bills of Rights that enumerate rights attached to individuals, the alternative Common Law tradition presupposes that human persons live in communities, that human life is relational, and that conflicts arise for adjudication when a clash of claims occur that need to be resolved with reference to some higher common good.
Law can be divided into sets of binary categories. One such set consists of public law, which concerns such matters as the powers of governmental institutions, on the one hand, and private law, which concerns such matters as the relationships between private persons, on the other. Another set consists of civil law and common law. In civil law systems, which prevail in Europe, Latin America, and most of Asia, public law is largely found in statutes, while private law is largely found in civil codes. In common law systems, which prevail in England and former English colonies, in particular the United States, private law is largely made by courts, in the form of rules adopted in judicial decisions. American private law is largely made by courts because complex societies need a great deal of private law to facilitate private planning, shape private conduct, and facilitate the settlement of private disputes, and the capacity and ability of American legislatures to make private law is limited. As a result, American courts have two functions: resolving disputes and making law.
The common law, which is made by courts, consists of rules that govern relations between individuals, such as torts (the law of private wrongs) and contracts. Legal Reasoning explains and analyzes the modes of reasoning utilized by the courts in making and applying common law rules. These modes include reasoning from binding precedents (prior cases that are binding on the deciding court); reasoning from authoritative although not binding sources, such as leading treatises; reasoning from analogy; reasoning from propositions of morality, policy, and experience; making exceptions; drawing distinctions; and overruling. The book further examines and explains the roles of logic, deduction, and good judgment in legal reasoning. With accessible prose and full descriptions of illustrative cases, this book is a valuable resource for anyone who wishes to get a hands-on grasp of legal reasoning.
Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for, and the risks in adopting a pristine version of, the proposition, and considers possible safeguards that may be incorporated within the process of scrutiny, if in any case there arises concern over the effectiveness of a novation that is undertaken pursuant to consent given in advance.