This chapter examines the history of the civil law tradition. The role of civil law first expanded in Rome. From a time of very rigid and formalistic procedures in the early empire, with essentially only chthonic law to be applied, the civil law grew, both substantively and procedurally, until it became substantively adequate to deal with an entire range of societal problems. From the time of its rediscovery, Roman law continued to expand, from its established positions in universities and in central political authority.
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Chapter
5. A Civil Law Tradition: The Centrality of The Person
Chapter
3. The relations of international and national law
This chapter explores the relationship between international and national law, discussing both the common law tradition and the civil law tradition. It suggests that each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally? The second factor is the difficulty of proving particular rules of international law. Third, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters.
Chapter
1. Tort and the tort system
General overview
Tort is the area of civil law which provides a remedy for a party who has suffered the breach of a protected interest. Different torts deal with different types of harm or wrongful conduct and the ‘ingredients’ for each of these torts are different; each with its own particular characteristics. This chapter discusses the types of loss or harm covered; competing interests; remedies; comparison of tort with contract law, criminal law, and human rights law; the aims of the law of tort (compensation and deterrence); and alternative routes to compensation. The influence of insurance and of the Compensation Act 2006 is included.
Chapter
5. Case law
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter first discusses the fundamental distinctions between common law and civil law, an important aspect of which is the role of judge-made law. It then examines the operation of the doctrine of precedent—the means by which law made in earlier cases binds the reasoning of some courts in later cases. This involves the skill of identifying statements of law, and the skills involved in applying those earlier statements, or alternatively avoiding their impact. It then considers the arguments for and against the roles of judges and legislators in making law.
Chapter
5. Protection from Domestic Abuse
N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter begins with discussion of the definition and scale of domestic abuse; government strategy; and gender-based abuse as a breach of human rights. It then turns to the protection afforded by the criminal law, before considering a range of civil law remedies. Towards the end of the chapter, attention is given to law reform proposals in the Domestic Abuse Bill 2020.
Chapter
11. The Tortious Liability of Businesses in Negligence and Nuisance
This chapter first discusses one of the most important torts—negligence—which may be commonly seen in instances of personal injury. This is followed by a discussion on acts of private and public nuisance. Torts law is particularly relevant to businesses as they need to be aware of the extent of their potential liabilities to workers, visitors to business premises, other businesses, and to the general public. This extends to ensuring that safe systems of work exist and appropriate insurance is maintained. Contrary to civil law, torts law imposes obligations on parties who wish to undertake duties freely and agree to be legally bound via contracts without, necessarily, prior agreement. The duty is to take reasonable care and not intentionally or negligently cause harm or damage.
Chapter
3. Protection from domestic abuse and occupation of the family home
This chapter considers the civil law remedies which are designed to protect a victim from domestic abuse. The two primary protective orders under Part IV of the Family Law Act (FLA) 1996 are the non-molestation order and the occupation order which can be applied for and obtained in conjunction with each other, or separately. The chapter discusses the fact that the occupation order can also be used to regulate occupation of the family home in non-violent situations when a dispute arises between family members about who is entitled to occupy the home, and on what basis.
Chapter
4. Overriding Objective and Human Rights
This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.
Chapter
1. Tort and the tort system
General overview
Tort is the area of civil law which provides a remedy for a party who has suffered the breach of a protected interest. Different torts deal with different types of harm or wrongful conduct and the ‘ingredients’ for each of these torts are different; each with its own particular characteristics. This chapter discusses the types of loss or harm covered; competing interests; remedies; comparison of tort with contract law, criminal law, and human rights law; the aims of the law of tort (compensation and deterrence); and alternative routes to compensation. The influence of insurance and of the Compensation Act 2006 is included.
Chapter
2. The principle of legality
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of how national legal systems tend to embrace and ground their criminal law lies on, with respecct to either the doctrine of substantive justice or that of strict legality. It then covers the principle of legality in civil law and in common law countries; the principle of legality in international criminal law; articulations of the principle of legality; and the principle of legality of penalties.
Chapter
4. Overriding Objective and Human Rights
This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.
Book
This book offers a major new means of conceptualizing law and legal relations across the world. National laws are placed in the broader context of major legal traditions, those of chthonic (or indigenous) law, talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law. Each tradition is examined in terms of its institutions and substantive law, its founding concepts and methods, its attitude towards the concept of change, and its teaching on relations with other traditions and peoples. Legal traditions are explained in terms of multivalent and non-conflictual forms of logic and thought.
Chapter
2. An overview of the English legal system
This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. It offers an overview of fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. The chapter will help you gain a firm grasp of terminology and know the differences between the criminal law and civil law. The general relationship between the English legal system and the European Convention on Human Rights (ECHR) as well as the limited, but on-going relationship with European Union (EU) law is outlined too. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as an overview of legal bodies and personnel in the English legal system, is provided.
Chapter
1. What is law?
This chapter aims to provide a rounded conception of what law is. It discusses the theoretical conceptualizations of law and the principles of the English legal system. It explains the distinction among different types of law including the distinction between criminal law and civil law, and the differences between public law and private law. The chapter also introduces several sources of law, including statute law, case law, and equity. This chapter provides the different meanings of the terms common law and civil law and clarifies that the English legal system refers to the legal system of England and Wales. The devolution of law-making powers is also discussed.
Chapter
2. Sources of employment law and institutions
This chapter discusses the sources of UK employment law and relevant institutions, and looks at court structure. The main source is statutes—Acts of Parliament, regulations and EU law. The common law is judge-made and has evolved over centuries as cases are brought to court and appealed up through the court hierarchy. The laws of contract, trust and tort all play a part in employment regulation. Most cases relating to common law matters are brought to the County Court or the High Court. Employment tribunal cases can be appealed to the Employment Appeals Tribunal (EAT) and then the Court of Appeal, the Supreme Court and, if concerning an EU matter, to the European Court of Justice. Other important institutions in the employment law include the Advisory, Conciliation and Arbitration Service (ACAS), the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive (HSE).
Chapter
25. Health and safety—The civil law
This chapter looks at the civil law arm of health and safety law, which serves to provide compensation to employees or ex-employees who have suffered a detriment due to the unlawful actions of their employers. It focuses on personal injury claims brought to the County Court and High Court and the defences that are available for employers when faced with such litigation. The discussions cover claims due to negligence, breach of statutory duty, breach of contract and constructive dismissal, and stress-based claims.
Chapter
21. Appeals and enforcement
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
The right of defendants to appeal against conviction or sentence is normally regarded as a fundamental human right. At present this right is laid down in numerous international treaties on human rights, as well as in the Statutes of international courts. The notion and purpose of appellate proceedings vary in national systems. Subject to a number of specifications and exceptions, in civil law countries, that is countries of Romano-Germanic legal tradition, these proceedings amount largely to a retrial by a court of appeal. In contrast, in most common law countries appellate proceedings do not lead to a retrial. Appeals courts, which do not have any jury, do not review facts, but decide on the basis of the trial record. In international criminal proceedings neither the common law system nor the civil law model have been upheld. Rather, a mixed system has been accepted, which is discussed in this chapter.
Chapter
1. Introduction
David Ormerod and John Child
This book focuses on substantive criminal law, that is, how offences such as theft and murder are defined. This introductory chapter sets in context criminal offences and defences, first by considering the basis upon which certain conduct is criminalised and other conduct is not. In continuing to set the context, the chapter goes on to consider criminal justice and criminology, criminal evidence, criminal process (including the court structure and central actors), sentencing, civil law protections, and so on. Narrowing to our focus on substantive criminal law—how offences and defences are defined—the chapter moves on to discuss the sources of criminal law, the internal structure of offences and defences, principles of the substantive criminal law, and the subjects to which it applies. Finally, the chapter introduces features on reform and legal application.
Chapter
4. Protection from Domestic Abuse
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses what the law can do directly to punish and rehabilitate perpetrators of domestic abuse and to protect victims. The chapter sets out the latest empirical data regarding domestic abuse and considers various theories regarding domestic abuse. The chapter addresses the requirements of human rights law in this area; the criminal justice system and domestic abuse; the civil law and domestic abuse; the Family Law Act 1996, Part 4; third party action on behalf of victims, now under the Domestic Abuse Act 2021; and legal responses to forced marriage.
Chapter
4. Domestic abuse
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 focuses on domestic abuse and its causes, along with a number of relevant civil law and criminal law remedies. It explains non-molestation orders under the Family Law Act 1996 before turning to a discussion of breach of an order as a contempt of court. It also considers occupation orders, which regulate the occupation of property, along with various categories of applicant who can seek them. Finally, the chapter examines protection available to parties who are not associated persons under the Protection from Harassment Act 1997.
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