Unions spent the 19th and early 20th centuries decrying "judge-made law" and seeking, essentially, to get the government and courts out of labor disputes.
|
|
" He wrote: "Sharing with the English the common law tradition of judge-made law, Americans are blessed with a much fuller literature on their judges' lives, reflecting, I believe, an American appreciation of the truth that the law a judge makes is a projection of values that are inescapably personal — even while the judge labors to be impartial between the litigants and objective in his framing of the dispositive legal rule.
|
|
In short, notwithstanding > Lord Coke's description of English general personal-property judge-made law, > the patent-specific statutory analysis must govern here.
|
|
In this context, common law means the judge-made law of the King's Bench; whereas equity is the judge-made law of the (now-defunct) Court of Chancery.The Judicature Acts of 1873-75 abolished the Court of Chancery and "fused" law and equity. Today, equity cases are mostly dealt with in the Chancery Division of the High Court. Equity is concerned mainly with trusts and equitable remedies.
|
|
The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law.
|
|
Severance agreements are also more than just a "thank you" payment from an employer in Canada. The amount of severance pay an employee is owed when dismissed without misconduct varies between common law (judge-made law) and employment law.
|
|
See here. Citation to English cases was common through the 19th and well into the 20th centuries. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for American state courts to rely on English decisions for matters of pure common (i.e. judge-made) law.
|
|
Equity is the other historic source of judge-made law. Common law can be amended or repealed by Parliament.For example, section 4 of the Carriage of Goods by Sea Act 1992 repealed the rule in Grant v Norway (1851) 10 CB 665. Not being a civil law system, it has no comprehensive codification.
|
|
Cromartie (1995) p.11 This had been brought about thanks to Sir Edward Coke, who in his Institutes and practice as a judge advocated judge- made law. Coke asserted that judge-made law had the answer to any question asked of it, and as a result, "a learned judge... was the natural arbiter of politics".Cromartie (1995) p.17 This principle was known as the "appeal to reason", with "reason" referring not to rationality but the method and logic used by judges in upholding and striking down laws. Coke's theory meant that certainty of the law and "intellectual beauty" was the way to see if a law was just and correct, and that the system of law could eventually become sophisticated enough to be predictable.Cromartie (1995) p.
|
|
The issue of what might be a material planning consideration in deciding any given case can be complex. This issue has never been legislated upon by Parliament and consists entirely of judge-made law arising out of numerous cases decided by British courts. In short they are planning issues relevant to the specific case. What is material to one application may not be material to another.
|
|
One complexity is the lawmaking power of judges under common law. Even in civil law systems that do not admit judge-made law, it is not always clear when the function of interpretation of the criminal law ends and judicial lawmaking begins. In English criminal law there are offences of common law origin. For example, murder is still a common law offence and lacks a statutory definition.
|
|
In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law. Codification is one of the defining features of civil law jurisdictions. In common law systems, such as that of English law, codification is the process of converting and consolidating judge-made law into statute law.
|
|
While Congress broadened the scope of Supreme Court review in 1914 to include state supreme court decisions allowing federal claims, Congress never actually authorized the Supreme Court to conduct plenary review of the merits of state law claims (and no one ever sought a constitutional amendment that would authorize Congress to do that). This meant the Supreme Court could not directly dictate uniform rules of state common law to all state courts or reverse their decisions for failing to apply such rules, which stands in stark contrast to other common law federations like Australia and Canada whose highest courts do possess such powers. Since state courts had no actual obligation to follow the "general law" independently formulated under Swift by federal courts, state judge-made law continued to diverge instead of converge. In turn, allowing federal courts to make up their own independent judge-made law only made the problem worse.
|
|
Coke in the 17th century thought that general restraints on trade were unreasonable. The English law of restraint of trade is the direct predecessor to modern competition law."the modern common law of England [has] passed directly into the legislation and thereafter into the judge-made law of the United States." Wilberforce (1966) p.7 Its current use is small, given modern and economically oriented statutes in most common law countries.
|
|
This Act, which began as Section 34 of the Judiciary Act of 1789, is now codified at and is as follows: :The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. In the Swift decision, Story had interpreted the words "laws of the several States" narrowly, treating them as referring to only the statutory law of states and not the judge-made law declared by states' appellate courts. Thus, where the state legislature had not passed a statute that controlled the case, a federal district court was free to make up its own common law. This was enormously significant because nearly all U.S. contract and tort law consisted of (and still largely consists of) state judge-made law whose foundations lay in English common law running back to time immemorial.
|
|
The 17th-century judge Edward Coke thought that general restraints on trade were unreasonable. The English law of restraint of trade is the direct predecessor to modern competition law."the modern common law of England [has] passed directly into the legislation and thereafter into the judge-made law of the United States." Wilberforce (1966) p.7 Its current use is small, given modern and economically oriented statutes in most common law countries.
|
|
The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.Miles O. Price & Harry Bitner, Effective Legal Research: A Practical Manual of Law Books and Their Use, 3rd ed. (Buffalo: William Hein & Co., 1969), 272.
|
|
The law of Finland is based on the civil law tradition, consisting mostly of statutory law promulgated by the Parliament of Finland. The constitution of Finland, originally approved in 1919 and rewritten in 2000, has supreme authority and sets the most important procedures for enacting and applying legislation. As in civil law systems in general, judicial decisions are not generally authoritative and there is little judge-made law. Supreme Court decisions can be cited, but they are not actually binding.
|
|
Judicial review for Kelsen in the twentieth century was part of a tradition inherited from the common law tradition based upon the American constitutional experience as introduced by John Marshall.Wolfe, Christopher. The Rise of Modern Judicial Review: From Judicial Interpretation to Judge-Made Law, Rowman and Littlefield. By the time the principle had reached Europe and specifically Kelsen, the issue of the codification of Marshall's common law version of judicial review into its form of constitutionally legislated law became an explicit theme for Kelsen.
|
|
Coke in the 17th century thought that general restraints on trade were unreasonable. The English common law of restraint of trade is the direct predecessor to modern competition law later developed in the US."... the modern common law of England [has] passed directly into the legislation and thereafter into the judge-made law of the United States." Wilberforce (1966) p. 7 It is based on the prohibition of agreements that ran counter to public policy, unless the reasonableness of an agreement could be shown.
|
|
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the judge-made law that developed from the early Middle Ages as described in a work published at the end of the 19th century, The History of English Law before the Time of Edward I,The History of English Law before the Time of Edward I, 2 vols., online, with notes, by Professor S. F. C. Milsom, originally published in Cambridge University Press’s 1968 reissue. in which Pollock and Maitland expanded the work of Coke (17th century) and Blackstone (18th century).
|
|
Case Law Judicial precedent (aka: case law, or judge-made law) is based on the doctrine of stare decisive, and mostly associated with jurisdictions based on the English common law, but the concept has been adopted in part by Civil Law systems. Precedent is the accumulated principles of law derived from centuries of decisions. Judgements passed by judges in important cases are recorded and become significant source of law. When there is no legislature on a particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes from first principles.
|
|
India minister says Kashmir will reject BJP – Central & South Asia – Al Jazeera English In a speech by INC Foreign Minister Salman Khurshid at the School of Oriental and African Studies in London, UK, he criticised the Supreme Court of India and the Election Commission. He said the former's judgement disqualifying convicted lawmakers was not a law but "a judge-made law" and that the Election Commission's guidelines were effectively saying that "you should do or say nothing that wins you an election. You should try your best to lose elections." He also criticised Modi for being ineffective during the 2002 Gujarat riots.
|
|
As with most common- law countries, Canadian tort law is primarily judge-made law, much of which is inherited from English tort law, which is supplemented by mostly provincial regulatory laws such as provincial automotive safety Acts. The core of Canadian tort law has not strayed far from its English origins, however, it is in the evolving areas of law, such as nuisance, defamation, or medical liability, where Canadian jurisprudence has set out on its own. The defendant in a tort suit is called the tortfeasor, and most often, financial compensation is what tort victims acquire. All torts require proof of fault in order to determine legal responsibility, however, fault is measured differently for the different types of tort.
|
|
In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. Black's Law Dictionary is the most-used legal dictionary used among legal professionals in the U.S.“The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified,” Southern Pacific Company v. Jensen, 244 U.S. 205, 222 (1917) (Oliver Wendell Holmes, dissenting). By the early 20th century, legal professionals had come to reject any idea of a higher or natural law, or a law above the law.
|
|
Our duty is ended when we obey the > law, and we should either do this or resign and allow others to take the > places which we occupy, who will regard the obligation of their oaths of > office. The great trouble with the judiciary of the entire country is that > many judges try to so twist and evade statutes as to enable them to > substitute their own private views for regularly enacted statutes. This evil > has become so great that there is now more judge-made law in the United > States than there is law enacted by the people. If the courts do not correct > this evil, no one can tell what the result will be.
|
|
Nor do our Courts distinguish between cases > which have arisen before, and those which arise after, the new rule has been > announced. For this reason it is sometimes said that "Judge- made law" is > retrospective in its operation. In all this our Courts have followed the > practice of the English Courts [.... I]t may nonetheless be said that there > is no rule of positive law which would forbid our Supreme Court from > departing from that practice. Indeed, as Kentridge AJ pointed out, members of the Judicial Committee of the House of Lords in the United Kingdom have accepted that it may be appropriate, when the interests of justice require it, for a new rule of law developed by the courts to operate prospectively only.
|
|
Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly—that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism). This principle is applied more strongly in fields of commercial law (contracts and the like) where predictability is of relatively higher value, and less in torts, where courts recognize a greater responsibility to “do justice.”William Lloyd Prosser, Prosser and Keaton on Torts.
|
|
The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importance Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments. Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority.
|
|
Common law jurisdictions in former members of the British empire, including the United States, Canada, India, South Africa, and Australia ultimately originate with the law of England and Wales. What distinguishes common law jurisdictions from their civil law counterparts is the concept of judge-made law and the principle of stare decisis - the idea, at its simplest, that courts are bound by the previous decisions of courts of the same or higher status. In the insurance law context, this meant that the decisions of early commercial judges such as Mansfield, Lord Eldon and Buller bound, or, outside England and Wales, were at the least highly persuasive to, their successors considering similar questions of law. At common law, the defining concept of a contract of commercial insurance is of a transfer of risk freely negotiated between counterparties of similar bargaining power, equally deserving (or not) of the courts' protection.
|
|
Canada, the prevailing concept is comity. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes. Recognition will generally be denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, U.S. courts, in accordance with the Securing the Protection of our Enduring and Established Constitutional Heritage Act, are prohibited from recognizing or enforcing foreign libel judgments against any United States person unless the foreign country in which the judgement was made protects freedom of speech to at least the same degree as the United States and the foreign court's conduct of the case in which the judgement was reached respected the due process guarantees of the U.S. Constitution to the same extent as a U.S. court would have.
|
|