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Author: Ben Juratowitch
Publisher: Bloomsbury Publishing
ISBN: 1847314104
Category : Law
Languages : en
Pages : 270
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Book Description
This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. ...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry
Author: Ben Juratowitch
Publisher: Bloomsbury Publishing
ISBN: 1847314104
Category : Law
Languages : en
Pages : 270
Get Book Here
Book Description
This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. ...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry
Author: Charles J. G. Sampford
Publisher: Oxford University Press on Demand
ISBN: 9780198252986
Category : Law
Languages : en
Pages : 308
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Book Description
However controversial, retrospective rule-making is not at all uncommon, and has been used by governments of all political persuasions for a number of applications. This text looks at the various ways in which laws may be seen as retrospective, as well as analysing the problems in defining retrospectivity.
Author: Antonin Scalia
Publisher: West Publishing Company
ISBN: 9780314275554
Category : Judicial process
Languages : en
Pages : 0
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Book Description
In this groundbreaking book, Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you using a gun in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. What, exactly, is textualism? Why is strict construction a bad thing? What is the true doctrine of originalism? And which is more important: the spirit of the law, or the letter? The authors write with a well-argued point of view that is definitive yet nuanced, straightforward yet sophisticated.
Author: Steven D. Smith
Publisher: Harvard University Press
ISBN: 0674043820
Category : Law
Languages : en
Pages : 223
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Book Description
This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense. The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.
Author: M. Cherif Bassiouni
Publisher: Martinus Nijhoff Publishers
ISBN: 9004186441
Category : Law
Languages : en
Pages : 1259
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Book Description
This title covers the history, nature, and sources of international criminal law; the ratione personae; ratione materiae - sources of substantive international criminal law; the indirect enforcement system; the direct enforcement system; and much more.
Author: Stephen Gardbaum
Publisher: Cambridge University Press
ISBN: 1107009286
Category : Law
Languages : en
Pages : 275
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Book Description
Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.
Author: Stefan Lorenzmeier
Publisher: Nomos Verlagsgesellschaft
ISBN: 9783848740888
Category : Law reform
Languages : de
Pages : 0
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Book Description
Das neue Recht hilft bei der Lösung von Problemen, mit denen sich internationale Organisationen, Staaten, Bevölkerungen und Durchschnittsbürger jeden Tag auseinandersetzen müssen. Die Autoren lösen dabei wichtige internationale, lokale oder nationale Probleme auf innovative und neuartige Weise, indem sie rechtliche Konzepte entwickeln, die auf staatlicher, regionaler und kontinentaler Ebene anwendbar sind. Zusätzlich zu Lösungen für spezifische Probleme beinhalten einige Beiträge eine theoretische Diskussion von Reformen und Verbesserungen allgemeiner Natur. Die von den Autoren dargestellt Vorschläge kombinieren das Wissen und die Erfahrung von Juristen und Praktikern mit der Kreativität von Nachwuchswissenschaftlern, um über die traditionellen Rechtsmodelle hinaus zu denken und bedeutende innovative Ideen einzuführen, die das bestehende Rechtssystem voranbringen.
Author: Québec (Province)
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : fr
Pages : 356
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Book Description
Author: Charles T. Kotuby, Jr.
Publisher: Oxford University Press
ISBN: 0190642726
Category : Law
Languages : en
Pages : 305
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Book Description
Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars. The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years. General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.
Author: Stuart Banner
Publisher: Oxford University Press
ISBN: 0197556493
Category : Common law
Languages : en
Pages : 265
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Book Description
The law of nature -- The common law -- The adoption of written constitutions -- The separation of law and religion -- The explosion in law publishing -- The two-sidedness of natural law -- The decline of natural law and custom --Substitutes for natural law -- Echoes of natural law.
