scholarly journals State Constitutional Law: Federalism in the Common Law Tradition

1986 ◽  
Vol 84 (4/5) ◽  
pp. 583 ◽  
Author(s):  
Ellen A. Peters ◽  
Bradley D. McGraw
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
The Common ◽  
State Constitutional Law

2. Sources of constitutional law and constitutional conventions

2017 ◽  
Author(s):  
Colin Faragher
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Common Law ◽  
European Convention ◽  
Eu Law ◽  
Essential Information ◽  
Judicial Decisions ◽  
Fundamental Freedoms ◽  
Constitutional Conventions ◽  
The Common

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first discusses the five key sources of UK law: the common law in the form of judicial decisions and cases involving the interpretation of statutes, Acts of Parliament, EU law, the European Convention on Human Rights and Fundamental Freedoms, and the law and custom of Parliament. It then turns to the issue of constitutional conventions, covering the distinction between laws and conventions, whether constitutional conventions are binding, and examples of constitutional conventions.

REASON, THE COMMON LAW, AND THE LIVING CONSTITUTION

Legal Theory ◽  
2011 ◽  
Vol 17 (4) ◽  
pp. 279-300
Author(s):  
Matthew Steilen
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Constitutional Law ◽  
Large Scale ◽  
Common Law ◽  
Recent Book ◽  
Alternative Account ◽  
What Works ◽  
The Common ◽  
Judicial Action

This article reviews David Strauss's recent book, The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action.

2. Sources of constitutional law and constitutional conventions

2021 ◽  
pp. 9-22
Author(s):  
Colin Faragher
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Common Law ◽  
European Convention ◽  
Essential Information ◽  
Judicial Decisions ◽  
Fundamental Freedoms ◽  
Constitutional Conventions ◽  
The Common

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first discusses the five key sources of UK law: the common law in the form of judicial decisions and cases involving the interpretation of statutes, Acts of Parliament, EU retained and converted law, and the European Convention on Human Rights and Fundamental Freedoms. It then turns to the issue of constitutional conventions, covering the distinction between laws and conventions, whether constitutional conventions are binding, and examples of constitutional conventions.

scholarly journals Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law

2008 ◽  
Vol 26 (3) ◽  
pp. 649-678 ◽  
Author(s):  
Harry N. Scheiber
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Common Law ◽  
Legal Process ◽  
Legal Realism ◽  
Legal Thought ◽  
Historical Literature ◽  
The Common ◽  
The Rich ◽  
Ocean Law

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

2. Sources of constitutional law and constitutional conventions

2019 ◽  
pp. 10-25
Author(s):  
Colin Faragher
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Common Law ◽  
European Convention ◽  
Eu Law ◽  
Essential Information ◽  
Judicial Decisions ◽  
Fundamental Freedoms ◽  
Constitutional Conventions ◽  
The Common

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first discusses the five key sources of UK law: the common law in the form of judicial decisions and cases involving the interpretation of statutes, Acts of Parliament, EU law, the European Convention on Human Rights and Fundamental Freedoms, and the law and custom of Parliament. It then turns to the issue of constitutional conventions, covering the distinction between laws and conventions, whether constitutional conventions are binding, and examples of constitutional conventions.

Treaty-Making Procedure in the United Kingdom

1938 ◽  
Vol 32 (4) ◽  
pp. 655-669 ◽  
Author(s):  
Robert B. Stewart
Keyword(s):  
United Kingdom ◽  
Great Britain ◽  
Constitutional Law ◽  
Common Law ◽  
The United Kingdom ◽  
The Common ◽  
Definition Of

The power to conclude and ratify treaties in the United Kingdom is one of the few remaining prerogatives of the crown. We may search in vain for constitutional laws, provisions, and decrees specifying the required formalities incident to the negotiation, conclusion, and ratification of treaties by Great Britain, because these matters are not governed by any act of Parliament or by any written regulations. British constitutional law on these points has not been embodied in statute and rests upon the common law alone. Thus there is no express definition of the treaty-making power and no reference to the authority by whom the treaty-making power may be exercised. Nevertheless, it may be said that under British constitutional law, which in this instance is common law, the authority to make treaties is vested absolutely in the crown as the unquestioned prerogative of sovereignty.

State Constitutional Law in 1935–36

1936 ◽  
Vol 30 (4) ◽  
pp. 692-712
Author(s):  
J. A. C. Grant
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Constitutional Development ◽  
State Constitutions ◽  
Chief Justice ◽  
Fundamental Law ◽  
Law Courts ◽  
National Constitution ◽  
State Constitutional Law ◽  
American State

There is a kernel of truth in Chief Justice Hughes' remark that “we are under a Constitution, but the Constitution is what the judges say it is.” To realize its full significance, “constitution” must be written in the plural. We have forty-nine courts of last resort, each interpreting the fundamental law of its own jurisdiction. The essential similarity of our state constitutions, and of our state bills of rights to that of the national constitution, together with the tendency of common law courts to follow each other's decisions, lend an element of stability to American state constitutional law that otherwise would be lacking. At the same time, even within so short a period as a year, the interplay of personalities may be seen moulding new doctrines in particular jurisdictions, which doctrines take on added significance because of the realization that they may, in time, serve as a basis for redirecting the course of constitutional development in other jurisdictions as well.

scholarly journals Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa

2019 ◽  
Vol 22 ◽  
pp. 1-30
Author(s):  
Hoolo 'Nyane
Keyword(s):  
South African ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Common Law ◽  
Legislative Process ◽  
Main Question ◽  
The Rule Of Law ◽  
The Common ◽  
Constitutional System

The Constitution of Lesotho has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho, 1993 has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism.

scholarly journals Rule of Law and the Doctrine of Proportionality; Appraisal, Rational and Validation

sjesr ◽  
2021 ◽  
Vol 4 (1) ◽  
pp. 222-229
Author(s):  
Hidayat Ur Rehman ◽  
Dr. Syed Raza Shah Gilani ◽  
Dr. Ilyas Khan
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Common Law ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
The Common

In Germany, many researchers – including judges – believe that the idea of proportionality should stem from the notion of Rechsstaat.  The term, when translated into English, is Rule of Law, and “Etat de Droit” in French. Applying the rule of law as a reason for adopting proportionality as a factor for limiting constitutional rights via the constitutionality of sub-constitutional law has also been implemented by other legal organizations. To understand the liaison connecting the rule of law and the doctrine of proportionality, it is essential to determine whether the proportionality could have a harmony with the values of rule of law in five steps. First, it is necessary to enquire whether the rule of law principle has a constitutional position. Next, it must be determined whether the rule of law as a principle of the constitution includes a feature of Human Rights. Third, we must ascertain whether the rule of law, as a principle of the constitution, is based upon an equilibrium amid constitutional rights and their limitations.  Fourth, it must be determined that such a balance is conducted through the use of limitation clauses (statutes or the common law). Fifth, it is essential to establish an opinion on whether limitation clauses, which advance the standard of the rule of law, are based on proportionality.

Sign in / Sign up

Export Citation Format

Share Document