- The Evolution of the Common Law: Legal Development in Kenya and India | Semantic Scholar
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- Understanding Common Law (with John Hasnas)
- Endogenous cases and the evolution of the common law
Journal of Commonwealth and Comparative Politics , 31 1 : 20 — There is also a theoretical debate regarding the role of law in a society, with Nicos Poulantzas Poulantzas, N. John Rawls Rawls, J.
The Evolution of the Common Law: Legal Development in Kenya and India | Semantic Scholar
For a historical and detailed discussion of the development of the common law in England see Van Caenegem Van Caenegem, R. The common law existed before , but the Magna Carta marked the beginning of the use of common law as a restraint on the monarch. The American practice of the common law has been singled out for criticism for its excessive litigation and the use of the courts to refine tort law to the point of creating a net welfare loss to society see Posner, Posner, R. This is quite different from the application of the common law in the English context in which legal decisions are less likely to be overturned.
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Thus, even in developed countries, the practice of the common law is not everywhere the same. The Civil Law Tradition, , 2nd ed. Most common law systems also use codes to a lesser extent, an example would be the Uniform Commercial Code in the United States, which is a codification of common law decisions regarding the sale of personal property. Oral argument in common law systems makes for good television. The same cannot be said of civilian systems in which the majority of the action takes place in a written format.
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In both systems, the investigation and fact-finding that precedes the trial can be quite drawn out. Posner Posner, R. This is clearly a point of tension and some common law systems have been better at doing this than others. From to there was no law report issued in Kenya on civil decisions.
Without an effort to record the decisions of judges it is impossible for the common law to evolve on the basis of stare decisis. Although in some cases, such as the South African, there might have been a perception that indigenous groups were absent due to population movement or dispersal. In the case of the African colonies this was sometimes British case law as further developed in India during the Indian colonial period.
One could argue over whether or not this body of law is correctly called British or Indian.
In India customary law was applied to personal matters and property rights were subject to British common law and protected even Indians, though with less vigour and consistency. For more information on different colonial patterns of legal administration see Joireman Joireman, S. Inherited legal systems and effective rule of law.
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Journal of Modern African Studies , 39 4 : — The Mutiny was interesting both from the standpoint of the precipitating political circumstances, described above, and for the tipping event that led to the violence. Discontent ignited into violence with rumours that the Enfield Rifle cartridges which were used by Sepoys were packed in animal fat. Since it was necessary to bite off the end of the cartridge before loading it into the rifle, the assertion that the cartridges were packed in animal fat was repulsive to both Hindus, who do not eat beef products, and Muslims, who do not eat pork products.
I hope I will not trespass too much on topics to be addressed by others in my presentation.
Understanding Common Law (with John Hasnas)
Particularly here in the countries of the former Warsaw Pact, where constitutional and democratic institutions have taken root over the last quarter century, it is important to appreciate the permutations of that sort of development. I am here as the representative of the common law approach to the function of a Supreme Court, and will begin by cautioning that in some ways the common law v. I will also speak mainly about the Supreme Court of my country, for it is a distinctive institution.
That said, the US situation offers an example of functions a court may have that differs from the function of courts in many other judicial systems, and those differences can importantly be said to relate to its role in a common law system.
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At the same time, I will regard such questions as whether the Supreme Court should have the power of judicial review of legislation as somewhat background. In the US, as is well known, we have had such review since Marbury v.
Endogenous cases and the evolution of the common law
Madison, but that decision did not immediately place a stamp on our Court that remained unchanged for the ensuing years. By focusing on two measures of the age of the references cited in a judicial opinion—reach average age of cited works and range variance of ages cited —we find that there is one type of citation behavior that is strikingly more likely to be used in highly influential opinions. Cases featuring low reach and high range are more than twice as likely as other types of cases to go on to be highly influential opinions.
Evidence for these conclusions is based on three sets of judicial opinions that span a century of time and diverse jurisdictions— the U.