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Common law thread ITT: We discuss our favourite and most important

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Common law thread

ITT: We discuss our favourite and most important precedent setting cases.

Obligatory is R v Dudley and Stepehns;
the case that set the precedent that the need for survival is no defense for murder.

Canadafag, so I'll post my favourite charter challenge;

R v Collins, which set the precedent that evidence collected that violated the rights of the accused is inadmissible for discoveries.

for non-Monarchy countries, R is for Regina (or Rex) meaning Queen and King.
Civil code need not apply.
>>
>>271730

I've always been partial to Gitlow v New York, which started the ball rolling of applying the Bill of Rights to state and local government, when it didn't before.

In addition to it being a huge development in American jurisprudence, it also lets me poke holes in gunfags arguments of original intent.
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>>271730
So in common law countries, law can apply to everyone- but in cases not the sovereign?
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>>271759
R/the Crown just represents the state. I'm sure there is a mechanism to try the sovereign for crimes though
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>>271759

Not OP, but:

Generally, sovereigns and those acting on their behalf are immune from lawsuit or criminal charges of any sort. However, you have a ton of exceptions carved out over the years. In U.S. law, for instance, you can bring any contract case against a sovereign (U.S. government entity), but it's much harder to bring tort cases, there are certain causes of actions you can, and certain ones you can't.


That has little to do with common law itself, which is essentially just the principle that previously decided cases by judges with authority in that area are binding law as well as statutes. I'm not really familiar with civil law codes, but it's entirely possible, and even probable to have similar provisions where certain governmental entities are immune to certain kinds of suits.
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>>271759
in the US it would be like, the Commonwealth of Massachusets V. defendant

its just representing the government
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>>271757
>Gitlow v New York,
td;dr me on this
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>>271806

>Guy writes a pamphlet which is basically one of those "OVERTRHOW THE GOVERNMENT! ANARCHO-COMMUNISM NOW!" tracts.
>Gets arrested for it under a New York state statue against the promotion of anarchy.
>Challenges his conviction based on first amendment rights.
>After long legal discussion at the Supreme Court level, they decide that even though it never did before, the 1st amendment protections should indeed apply when it's a state government getting you in trouble, not just the federal government giving you grief.
>Gitlow still goes to jail because the view that an advocacy for imminent and violent overthrow of the government isn't protected, but New York's law still has to undergo constitutional review.
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>>271823
in Canada we have the notwithstanding clause, part of the charter of rights, which applies to your fundamental freedoms, like freedom of relgion, freedom of expression, freedom of association shit like that. Only 2 provinces have succesfully used it, Quebec and Saskatchewan, and Alberta tried for preventing gay marriage, but marriage federal so it was out of their jurisdiction.

Bascially the notwithstanding clause is like, notwithstanding this violates freedom of expression, we're making it illegal. It lasts 5 years, so likely in 5 years a new government will be in office and they could repeal it.

Quebec used it when a guy was putting English signs up in his shops, and Quebec wanted only French signs, he argued it violated freedom of expression, the Supreme court sided with him, and Quebec used the notwithstanding clause

Now if any government used it it would be really controversial. It only existed to get Quebec onboard with the charter
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>>271848

Well, I find Gitlow most interesting because if you look to older (now bunk) cases like Barron v Baltimore or United States v Cruikshank (which also have to do with bill of rights issues on the state level), the Supreme Court is very open and clear that the Bill of Rights aren't positive rights per se, rather, they're limitations on the power of the federal government, and thus have 0 impact whatsoever on the actions of state governments; if such a state government tramples on your rights, that's an issue between you and them.

Ultimately, it represents a shifting of power away from the state governments to the federal ones, which to be honest, I find generally positive; long gone are the days where states are mostly sovereign entities.

But I also like waving it up in front of /pol/ tards about what the founding fathers would have wanted in whatever the latest gun control issue is, since they very clearly thought that the 2nd amendment only applied to the government in Washington.
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>>271730
>dfw civil law but studied half a year in britland

Lampleigh v Brathwait
Set the precedent that common law is fucking weird.
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>>271886
Anti-american Jew spotted
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>>271886
negative and positive rights can change based on the wording, like Freedom from unlawful search and seizure, is a negative right.

in Canada the Provinces technically have equal power to the federal government.
the BNA Act (British North American Act) 1867, is a British act of parliament that basically made Canada a country, and it's the first half of our constitution.

It's the division of powers between Ottawa and the provinces, and both the feds and provinces gets pissed when one tramples onto the jurisdiction of the other. But the Supreme court of Canada has power over both.
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>>271891
what country?
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>>271730
I don't know the difference between common law and civil law. Am I dumb?
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>>272010
Eh, the distinction isn't really THAT important unless maybe you end up in a lawsuit--even then, it's more of a thing for law-people (lawyers, judges, etc) to know, and even THEN it's largely trivial knowledge unless you frequently go back and forth between a common law and civil law country.
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>>271926
Mexico
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>>272010
In civil law, the legislators legislate and the courts adhere.

In common law it gets complicated.
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>>272010
Civil law is a codified set of laws. Government passes laws to determine everything from contract law, to murder.

Common law, aka case law, used past legal decisions, ie precedents, to make new judgements.
You'll occasionally hear of a "precedent setting case", which is a case that will basically result in a new law, or a new interpretation of law.

Most (if not all) common law countries are originally based on English common law, and then have adopted their own form, by adding onto it since.

Basically all, or the vast majority of laws, are the result of past cases. I'll try and think of some good examples
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>>272010
idk what country you're from, but if you ever see American or British movies in court, you'll notice they bring up past judgements and past court cases. That's because they are referencing precedents set which are relevant to the case their defending.

The concept of manlsaughter is the result of a series of common law decisions example.
"both parties agreed to fight, one party died, the party responsible did not plan to kill him, but a reasonable person would know if somebody hit their head on concrete there is a reasonable chance it will kill them. Therefor he is not guilty of first degree murder (premeditated), or second degree murder (causing death without premedidation but knowing the actions are likely to cause death, whereas manslaugher the actions "could cause death".

Anyway that's just one example how manslaughter charge was the result of precedents being set.

In a civil law system, the legislature would have to pass laws determining okay, THIS is first degree murder, THIS is second degree murder and THIS is manslaughter. Then the judge/jury have to make judgements on those 3 types of murder.
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>>272028
https://en.wikipedia.org/wiki/Lampleigh_v_Brathwait

k i just read it. The precedent set is that if there is a reasonable reason for the plaintiff to believe he is entitled to the prize money or whatever, without formal contract, then the plaintif is still entitled to it basically
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>>272163
Yeah, I know the precedent. It just took me a while to understand it.
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Are trips welcome?
>>
Bump for quality
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Doesn't common law give issues with predictability?

I mean, obviously civil law also makes use of precedents, but having most of the rules codified surely helps with predictability, compared to having it be 90% (?) case based.

t. civil law country
>>
Can we talk about current cases?
http://www.thestar.com/news/crime/2015/11/19/forcillo-lawyer-blasts-crown-expert-monday-morning-quarterback.html

The Forcillo case is pretty controversial right now. Toronto cop unloaded like 9 rounds into a knife wielding man on an empty streetcar.

He's being charged with second degree murder. The defense just asked for a new trial and got it because the crown used a really intense character witness who painted him unfairly as an asshole.

>>272497
>Doesn't common law give issues with predictability?

Not really, if anything it's creates more consistency. Decisions made are on precedent, things that have happened, whereas civil law it's according to a codified rule. A precedent setting case would be a judgement on something that hasn't happened before, which is why it creates a new law, according to contemporary values and such. Precedents can be challenged, and reset, so it's flexible while offering consistency.

It's also better than government writing laws before what they're codifying has ever happened.
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>>272497

it enhances predictability. precedents are used to ensure judgments are consistent - if one senior judge or courts interprets a case one way, precedents are invoked to ensure all judges do so.

the law is pretty codified, but you don't get individual judges interpreting things in different ways because precedents which have been established can be cited to ensure fairness and consistency of treatment.

precedents also clarify sections of law, where some doubt exists. the CPR, for example, can be interpreted in all sorts of creative ways, but precedents based on how judges have ruled (usually a higher court on appeal) may give clarity to a particular issue, especially when a law is new or has been recently amended and no one is quite sure how it will work in practice. issues around things like costs can be pretty contentious and expensive, and without precedents you run the risk of claimants or defendants "fishing" for courts which are likely to make awards or grant costs in a way that favours them.

t: paralegal in english law firm
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>>272561
>t: paralegal in english law firm
noice, I work at a lawfirm too and am going to apply to law school next fall. So I won't start until 2017 and be done 2020. Fuck. I love it though
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>>272614

i love the work.

but fuck me the office drama is unbelievable. it's literally an industry full of highly strung, neurotic nerds, from paralegal to partner level.

i've never seen so much bullshit and autismo.

still, worth it.
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>>272632
the firm I work at is mostly real-estate law, so half the time I'm preparing client reports by compiling all of the 'security documents' and writing a letter about it. I like reading reading all the legal rhetoric though.
Security documents are basically what protects the vendor and seller if anything is wrong with the property; so an environmental indemnity, states that the land is up to environental code, in accordance to provincial standards. Then if the purchaser gets the land and has to spend money to rebuild the sewage infrastructure, they're entitled to sue the vendor.
When I go to law school I really want to do litigation, or defence lawyer. My dream is Crown attorney.

Canadafag here
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>>272561

>the law is pretty codified

I'm not sure if I might have overestimated the difference between common and civil law. Most of what you've written is similar here, precedents by the high court clear up questions regarding the application of the codified rules, often by looking at what the lawmaker intended or applying more general principles.

I guess your codified laws are just much more baseline then? Leaving more space for higher courts to set precedents. Somehow I had gotten the impression that it was more extreme than that.

Sorry for invading your common law thread by the way, I'm just starved for law threads in general...

>>272614

Only three years huh? 50% longer over here. Not to mention all the stuff to do afterwards.

>>272632

Damn, I don't like drama queens.
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>>272650

noice. i kind of want to do conveyancing or planning or property related shit.. it seems like an area where you can just get your head down, get shit done and go.

i do commercial litigation (mostly debt recovery). prising money from retards and issuing claims or bankruptcy proceedings against them if they don't pay up. it's fun, though.

and don't even get me started on reporting. i spent half the fucking day creating and populating spreadsheets, cos clients gotta have that MI. none of that work was billable either.

go for it blud. if you can be a lawyer on the government payroll, you'll be set. criminal law pays shit (in the UK at least) but if you work for her maj or a governmental body, you get most of the fun of being a lawyer without some of the bullshit billing targets and other nonsense (some don't even time record). the next best thing is to be in-house legal for some corporate monolith, which has pretty much the same perks.

the real money is in commercial law, sucking at the corporate tit and providing validation for decisions made by client management (and holding their hands when decisions are challenged) at stupendous hourly rates. however, the pressure is always on to bill bill bill. "high street" (i.e. small) is an insult where i work, as in "that law firm is a bit high street".
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>>272664

yeah, you have a pretty codified set of laws. precedents are just interpretations of existing laws. judges cannot make laws (although i believe in the US the SCOTUS can strike down laws which are unconstitutional).

it's more complex than this in reality, of course, but that's the gist.
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>>271730
>Common law
>Jury's
>Medieval case law
>Little to no shit written down
>Having to present all evidence in court

Literally what the Judge had for breakfast tier.
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>>272723


>judges cannot make laws

They actually can, and about 90% of U.S. procedural law is judge made, not legislature made.

It's not often exercised, and even then only by appellate levels of judiciary, but they can and do make laws over here.
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>>272723

>tfw no constitutional courts

I want it desu

Is the british constitution being unwritten a meme or true?

>>272726

>juries

Shit.

Not that our system is better. Have local politicians be co judges to the real judge (nämndemän) in lower instances. Enjoy having them fall asleep.
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>>272735
>Have local politicians be co judges to the real judge (nämndemän) in lower instances. Enjoy having them fall asleep.

Trias politica/checks and balances?
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>>272695
>i do commercial litigation (mostly debt recovery). prising money from retards and issuing claims or bankruptcy proceedings against them if they don't pay up. it's fun, though.
yeah this is called Power of Sale here,
I actually took a job as a power of sale clerk, worked for 2 weeks and realised I was in over my head. I was suffering insomnia at the time and would just get confused and shit during the day. Hopefully they keep the position open until january or something
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>>272732

that's madness.

does much get done through a central office or justice ministry like the UK, or do they just make up laws in court?

i suppose with small jurisdictions you kind of have to do a lot on the hoof, but it seems like a forum for the abuse of power, with little oversight or accountability.
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>>272744

It's a way of shoehorning in people's representation/division of power I guess but doesn't work well if they are asleep or retarded.
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>>272723
>judges cannot make laws
dude. Like all contract law in Britain and Canada are from precedents set in courts. By judges. Sure there is a criminal code, but judges can certainly make laws.
Like the severity for possession of a Class A drug. Personal use, okay like very minor penalty. The codified law doesn't really specify how much is personal use etc, that was a judge who determined that based on a case presented to him.

Judges make most laws in commonwealth countries dude.
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>>272749
That sounds like the number one problem civil law countries have with common law but in practice it seems to work.

A bit.
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>>272759

Isn't that just clarifying the law rather than making a new one?
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>>272735

it's true. the body of laws passed by parliament represents the british constitution.

there's an act of rights (upon which the bill of rights was based) but there's no actual singular written document which sets out how the british state operates.

also: parliament is sovereign, so no judge can strike down their laws. the idea is that parliament represents the collective will and authority of the british king and people, so you cannot have judges overrruling it by striking down laws it passes.
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>>272766
It's written law that clarifies the customary law once in a while IIRC.

For civil law that what you describe is what judges do.
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>>272749

>does much get done through a central office or justice ministry like the UK, or do they just make up laws in court?

Well, caselaw is only binding on "lower level" courts, so the district judges have 0 ability to make law.

Most states only have one IAC, and there are only 12 federal ones, (as well as a few subject matter jurisdiction special courts, like there's one for tax law specifically), so each of them have a wide geographic reach. And then at the top, the SCOTUS federally or whatever the state's supreme court calls itself, is there to harmonize any varying decisions made in its component jurisdictions.


So the problem isn't really that big.

As for how, it's literally put into the decisions themselves, so yeah, they make up said laws in court.

And most if not all of these bench laws can be overwritten by the legislature unless they're about constitutional matters, so they can get checked if they get out of hand.
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>>272749
>or do they just make up laws in court
a court case would be presented to them; here's a good example of what happened in Canada recently,
http://www.cbc.ca/news/canada/nova-scotia/kevin-joshua-neil-acted-in-self-defence-judge-rules-1.3020018

In Canada self defence laws are kind of shit. you only have the right to defend your dwelling, if someone is trying to breach it. So not your property like in the US, but your dwelling.

Example if you had a big fence set up and a guy hopped into your backyard you do not have the right to use force against him. But if a guy smashed your window to hop into your house then you can defend yourself.

This case, a judge ruled that a guy who defended his property outside with a firearm acted in self defence. Even though he went back into his house, came out and shot the guy.
This is a precedent setting law, which changed how the criminal code (codified law of self defence) can be interpreted.
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>>272759

the precedent is the judge's interpretation. he's not making a law, he's setting the limits according to his interpretation of an existing law.

precedents are just that: precedents. in effect they act like laws (because people follow them to ensure consistency) but they aren't laws. they're interpretations of existing legislation. precedents are frequently incorporated into revisions of the law. when this happens, that's when they become law. but that's when they stop being precedent.
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>>272788

all land in the england and wales belongs to the queen. you can be a freehold proprietor, but that's all you are. you're essentially a rent-free tenant of the queen.

i'm guessing the same is true in canada?
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>>272794
I know this for contract law for sure, not being pretentious, but I work with real estate lawyers, real estate law is ALL contract law. Out of interest I've read a lot about the history of real estate law, and it turns out that transactions were legally codified, but all the other stuff, like ensuring utilities have been paid before the property was sold, ensuring the building is to code, or the purchaser has the right to sue the vendor. Stuff like that was all set by precedents in court
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>>272788

>So not your property like in the US, but your dwelling

That's not actually how self-defense laws work in the U.S.

Federally, and in every state I'm aware of, you do need a threat to person or persons, not mere property damage. See Katko v Briney (guy leaves a shotgun trap in his home while he goes on vacation, still liable for battery when it injures a trespasser) or similar cases.

Rather, and this part varies a lot state by state, you have differing levels of your duty to retreat if you can do so safely, as well as the differing levels of presumption about an unknown party's intentions. You're generally allowed to assume someone on your property sans invitation is there to do you harm, but if you specifically know otherwise (say it's a relative giving you a surprise, or you're not there and activating whatever trap it is by remote and camera), you have not acted in self defense.
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Old court rolls have some funny shit in them once in a while.
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>>272805
I believe the old tart Elizabeth owns the entire commonwealth.

You're all one step away from feudal society lads. I never understood the whole 99 or 999 years tenancy/lease shit though.
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>>272809

Too soon

Margery died, show respect.
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>>272821
She died 714 years ago. I reckon a few people in this thread or on this board could be descendant from her.
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>>272805
Well private property exists, but all government land is Crown land.
Before the land registry act, I think it was as you described freeholders of crown land.
LRA entitles people to their property, and the Crown also has the right to sell crown land to private owners. Technically you're still on crown land because the government can pass legislation to expropriate land which forces you to sell your property at market value to the government. This has only happened in very rare occasions.

Last time it happened was to build an airport, the government forced farmers to sell their land at market value so they could build aan airport
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>>272769

>also: parliament is sovereign, so no judge can strike down their laws. the idea is that parliament represents the collective will and authority of the british king and people, so you cannot have judges overrruling it by striking down laws it passes.

It just rubs me the wrong way if you can't do something about unconstitutional laws; a democracy that doesn't follow its constitution isn't the good kind of democracy.
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>>272836
Can't the House of Lords do something?
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>>272809

It's not like new ones are that different.

http://kevinunderhill.typepad.com/Documents/Mayo_v_Satan.pdf


>Civil rights action against Satan and his servants who allegedly placed deliberate obstacles in plaintiff's path and caused his downfall, wherein plaintiff prayed for leave to proceed in forma pauperis.

>He alleges that Satan has on numerous occasions caued plaintiff misery and unwarratned threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff's downfall.


>Even if the plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing in an American court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.
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>Americans will never be freeholders of Crown land
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>>272832

>market value

125% of market value here IIRC. Your queen is a cheapskate.
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>>272852
>The defendant in that action was represented by the preeminent advocate of that day

What? Who represented him?
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>>272806

hmm.

do they just use precedents without having codified them? that's weird.

we have things here called "norwich pharmacal orders" where a court can compel a third party to disclose information to a claimant under certain circumstances.

now, it started out as a precedent, where the judge allowed a certain interpretation based on extant disclosure rules as well as previous precedents.

however, since then it has been codified within the CPR itself. it's a case where judges interpreted existing authorities and laws in a certain way.

i can see how this be seen as creating a new law (in effect), but in reality it's a new interpretation of existing laws. judges cannot go off-piste, all they can do is provide an interpretation of existing laws for new or ambiguous situations.
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>>272816
>I never understood the whole 99 or 999 years tenancy/lease shit though.
In Canada the government used to do this until the land registry act.
the LRA is Ontario legislation, so it might be different in other provinces, and be more like it is in England and Wales.
First nations do it though; if they've acquired a lot of territory through treaties which were actually honoured, they can lease land to people or even the government. it becomes controversial when the leases are up though.

In northern Ontario there's an Island on Georgian Bay/Lake Huron called Parry Island which is all Mohawk land, and at the turn of the century when people were first settling up north they leased lakeshore land on the island for cottages. They were 99 year leases, which are soon to expire. So legally, these people who have had their property, were entitled to build big cottages, and were entitled to sell their lease within the 99 year period, are soon to lose their property. And if the Native band doesn't want to renew the leases they're fucked.
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>>272852
>>272809

http://kevinunderhill.typepad.com/Documents/Opinions/Bradshaw_v_Unity_Marine.pdf

And then there's this.

>Before proceeding further, the Court notes that this case involves two extremely likeable lawyers, who have together delivered some of the most amateurish pleadings to ever cross the hallowed causeway into Galveston, an effort which leads the court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact-- complete with hats, handshakes, and crpytic words-- to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.
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>>272890
>And if the Native band doesn't want to renew the leases they're fucked.

Why wouldn't they want to renew them?
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>>272893
Extremely likable but amateurish?
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>>272906
to be assholes basically. They get money from renewing the leases which is why they would do it, but it's no guarantee and by law their entitled to their land. Any court case threatening that would cause a shitstorm and more native protests. The likelyhood of them not renewing the lease is low, but they could make the prices a lot higher to reflect contemporary property values in the area which could fuck people.

It would basically be like buying "your" land back at market value which a lot of people couldnt afford
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>>272816

freehold tenure is in perpetuity (iirc - haven't seen land reg docs for a couple of days).

leasehold tenure is either 99 or 999 (or any) length of time.

usually it's used when a freehold title is sub-divided, for example flats. the management company or developer will typically own the freehold to the whole block of flats, and will sub-divide freehold into a series of long-lease titles based on the flats (and other parts of the building, like an associated parking space).

usually a peppercorn rent is payable, and there may be obligations on the leaseholders within the lease.

there are also easements and restrictions which may apply to freehold titles, such as building, use and right-of-way rights and restrictions.
>>
Has anyone here read the old "Uncommon Law" books by A.P. Herbert? He was a very bright lawyer and writer in England in the 30s and 40s; book is a parody on "misleading cases."

Some of his writings actually get cited (incorrectly) as precedents.

https://en.wikipedia.org/wiki/Uncommon_Law
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Quality thread OP
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>>272929
tldr me
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>>272986

Funny fake cases.
>>
has anyone here read the Paston Letters?
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>>273018
arent those like 500 years old?
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>>273069
Is this a history board?
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>>273085
humanities board m8
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>>272986

Wrote funny parodies of stuffy English judges presiding over absurd cases, such as: "Is it a Free Country?"; if a parrot trained to repeat scurrilous remarks about a politician committing slander or libel? And is a cheque written on a live cow legal tender?
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>>273094
I never knew what the word meant until a year ago.
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>>273105
kek, clever
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>>273115
english second language?
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>>273307
Second or third depending on how you look at it.
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>>272632
post saucy office drama tl;dr's
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Any Canadians here?
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>>274171
AYY
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>>272809
the new ones do too
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>>274542
Are you following the Forcillo trial?
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>>271730
reminder that any judgement is just the personal choice of the particular judge who was in the trial.
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>>274899
reminder, codified laws are written by politicians who may or may not know anything about law, and are looking for re-election.
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>>274611
Shut your whoring mouth.
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>>274542
Well I just saw a bunch of excerpts from the Forcillo trial's transcript
Any Canadafags following that trial too?>
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>>274598
these are great
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>>271730
As a lawyer, I can assure you that common law is cancer.

Judges are terrible. They're just lawyers who are old enough that they are no longer in touch with contemporary morality and may indeed border on senility.
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>>275691
>civil codefag detected
>>
reminder that laws are analytical knowledge and therefore utterly useless.
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>>275732
except they work and keep society running pretty smoothly

>>275691
muh gunment makes better laws!
>>
Any cases in the news around you guys?
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I remember reading about one copyright case where the jury based their decision on the chord progression (and the defendant was kind of a snob). Now it's gonna be a precedent for all sorts of fun cases.
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>>271730
>not R v Jackson and it's obiter comments

Failing that, The ex parte World Development Movement case was pretty neat.
>>
I actually think judges are pretty based for the most part. I am angered by their decisions a lot less than the legislature.
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>>272735
>Is the british constitution being unwritten a meme or true?

Yes. The UK Constitution arguably exists from Acts of Union, the Bill of Rights 1869 and shit like that, but it doesn't say in any of them "what is in these documents is sacrosanct". Due to the doctrine of Parliamentary Supremacy from a legal standpoint our parliament can do whatever the fuck it wants, it can technically legislate for Paris if it wants to, it could claim ownership over Rhodesia like it did in the 60's, it is theoretically limitless in power. That being said, judges have made comments suggesting that there are certain things are sacrosanct which even Parliament could not fuck with, e.g. stuff like Judicial Review which is a process that allows judges to make sure the government (and parliamentary technically) does shit within the law. Also the question of human rights and the power of the European Union's legal system on UK law is seriously undermining the idea of Parliamentary Supremacy and many of them are arguably part of the UK constitution.

TL;DR. Completely unwritten constitution, everything is done completely off the cuff by judges attempting to read between the lines of what Parliament's intention was/is. Potential for conflict if Parliament ever tries to repeal certain "constitutional" arrangements which are seen as integral to democratic society and the rights of individuals, e.g. if one day Parliament just shut down the Scottish government or declared that indefinite detainment is possible (as it actually did in a 2004 work in progress parliamentary bill before the judges told them to go fuck themselves).

UK law is incredibly intangible and all the more interesting for it.
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https://www.youtube.com/watch?v=7FiOmiiX48I

http://www.victorianweb.org/mt/gilbert/judge.html
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>>277541
Most of the Canadian constitution is unwritten
The only written parts is the BNA act which says Canada is a country, and the division of powers; provinces have these powers and the federal government has these powers.
Then 1982 was our bill of rights
Everything else is just parliamentary convention
It's not even written that we should have a PM
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>>277535
I think judges, ex lawyers who've practiced for I think it's 15 or 20years, go through "judge school" then serve as a judge, have better judgement to make laws than politicians up for reelection desu
>>
Are you guys legal positivists or natural law theorists? Kinda curious.
>>
>Whiteley v Chappell (1868)
>man accused of electoral fraud
>had been impersonating dead people so that he could vote multiple times
>accused of breaching a piece of legislation saying that impersonating a person for the purposes of voting was a criminal offence
>the judges ruled that since the man had actually been impersonating people who were dead, and who as a result of being dead were not entitled to vote, the defendant was not guilty of violating the offence by impersonating people for the purposes of voting
>led to future interpretation of Parliamentary statutes changing massively as it judges began to move away from interpreting the law literally
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>>277541
>Due to the doctrine of Parliamentary Supremacy

On paper we have parliamentary supremacy because we have a notwithstanding clause in the charter of rights, which means the provinces or r federal gov could include it in a bill "not withstanding the violation of freedom of expression, English signs in Quebec shops are banned" as was done in the late 80s
It only lasts 5 years and the new government would have to use it again or let it expire.
Quebec has used it the most but not since the 90s and the feds have never used it. So technically we do have parliamentary supremacy but very rarely is it exercised
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>>277588
Probably a positivist. Rights and laws change over time. Sure there are rights which humans should be entitled to but I only think that is because of social constructivism rather than our natural right. Or else soon after Mesopotamia you'd think people would be fighting for rights, but it wasn't until the enlightenment l before civil rights or human rights were ever really hypothesized
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>>277602
That's actually a clever case, thanks for sharing
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>>277613
>So technically we do have parliamentary supremacy but very rarely is it exercised

It isn't something that is "exercised", it is the governing principle of the UK state and legal system (at least in theory). Our Parliament would be able to say "English signs in Quebec shops are banned" without the prior provision if they wanted. A judge would not technically be able to do shit about this, but they'd use the Human Rights Act 1998 to declare an incompatibility between the Act of Parliament and the European Convention of Human Rights. This technically has no power, but the legislature would have a lot of political pressure on it to make changes (though I believe in a few cases like prisoner voting rights it has straight up ignored them).

What you're talking about isn't exactly what Parliamentary Supremacy is, PS basically means that Parliament in the UK can legally do whatever the hell it wants. It is only a legal fiction to some extent nowadays, as in a 21st century democracy people would be furious if the legislature was shitting on them every five seconds with their decisions. UK judges, despite all the shit slung at them, have actually been very efficient at safeguarding peoples' rights despite the theoretically small amount of power handed to them.
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>>277588
Positivist for sure. "Natural law" is an oxymoron.
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>>277637
>though I believe in a few cases like prisoner voting rights it has straight up ignored them
In Canada the government tried to do this and the supreme court shut it down
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>>277588
Natural law just leads to fanaticism when they view things as eternally just or whatever. Americans are complete loons.
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>>277630

But could social constructivism be actually an attempt to reason and rationally discover natural law? For example, one principle that everyone holds is that od equal dignity between all humans.

>>277640

In what way is natural law an oxymoron? There could reasonably be universal principles, just like the laws of physics. Of course it's a poor analogy, but the objective aspect is there.
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>>277656
>Americans are complete loons.
This

>>277602
>led to future interpretation of Parliamentary statutes changing massively as it judges began to move away from interpreting the law literally

Too bad this didn't happen before and American courts separated from Britain. Maybe then the second amendment would be taken less literally and it government can hop off the NRA dick of freeDOM and murder
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>>277675
>Too bad this didn't happen before and American courts separated from Britain.

The UK legal system was all sorts of fucked up before reforms in the late 19th century.
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>>277656

You know, loads of people have argued that legal positivism is even more susceptible to that. In fact, it took natural law for the Nuremberg tribunal to mete out justice to the positivist Nazis.
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>>277686
Oh yeah just making laws up after the fact sure is just.
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>>277673
>For example, one principle that everyone holds is that od equal dignity between all humans.
Okay I see your point. Perhaps natural law theorists are a result of the of society changing. Natural law is the first meme. "Equal human dignity is a natural right, slavery must be banned"
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>>277675
Well we could just stab a couple hundred people in a train station to get our killing fix like in Kunming.
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>>277706
That only killed like 3 people tough didn't it? Frog shooters here kill like 50 people a year
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>>271730
Oh neat, a law thread!
>Civil code need not apply
Aaand I'm out
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>>277718
Stay and learn something about the superior form of law making and administering justice!
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>>277725
>using past trials
>not objectively inferior to following codes of law

sides etc
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>>277730
>not objectively inferior to following codes of law

>The gubment telling me what's right and wrong

Using past trials sets the precedent so other trials are treated the same way or similar way. It's a constant development and redevelopment of law
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>>277739
>implying civil law can never be changed
>implying it even needs to

ayyy lmoa
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>>277730
>implying that you can codify all of the potential shit a person could theoretically do
>failing to adapt to individual circumstances
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>>277746
>all of the potential shit a person could theoretically do
Nigga that's not how law works.

Codes of laws are generic, not specific. That way it's easy for them to cover every scenario.
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>>277673
>dignity
bourgeois concept supposedly replacing the supreme principle of honour for the nobility, that nobody have been able to say what it is for centuries.
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>>271757
I got curious and looked it up
1925 seems incredibly late for this, but it checks out. I thought we solved that in 1865 with all that states rights stuff.
Once again my opinion that victorian america was a much better and different country seems to be right.
I think I have the right to be mad at when people ask "Is he trying to kill America?" because America died a long time before the America they want back.
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>>277751
I see I have forgotten to add a meme in my post, fuck
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>>277746
This

The reason different levels of manslaughter exist is common law. Civil code can't account for every possible circumstance of one person causing the death of another. A fight that leaves someone dead is surely different than second degree murder
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>>277751
>That way it's easy for them to cover every scenario.

So it's up to the judges' discretion then? That sounds familiar.
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>>277755
I don't follow that map. What does the red represent?
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>>277763
It's unrelated to my post.
Red means percentage of land in that state owned by the federal government
It's kind of a issue that a lot of people don't understand. On one hand you got people advocating for it to stop development and have wildlife preserves (which is not their intended purpose most the time), on the other you have people wanting to free it up to have a massive and short landboom where realistically chinese investors will eat up most the land. Right now the BLM just auctions the land off when they need funds, resulting in hilariously cheap prices because no one goes to these auctions.
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>>277783
Okay I see now. Similar in Canada but we have national parks and couple world biosphere reserves which development is illegal, as well as first nations land which development on or near would cause a shitstorm. The crown doesn't sell off land to developers anymore either because so much land is owned by farmers around urban areas that developers give them an offer they can't refuse.

Around Toronto the province has set aside a "green belt" which is a horseshoe of land around the greater Toronto area of woodland and farmland which can't be devekoped.
Ironically given the size of Canada because of provincial laws there are a lot of places development can't occur. That's why we have a few high density areas and many rural communities. That and anything north of the 60th parallel is basically permafrost
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>>271757
>it also lets me poke holes in gunfags arguments of original intent
A bit late, but how does this hurt the second amendment ?
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>>277673
>In what way is natural law an oxymoron?

Because no laws exist in a "state of nature" without the monopoly of force created by human civilization.

> There could reasonably be universal principles, just like the laws of physics. Of course it's a poor analogy, but the objective aspect is there.

No. Conflating human law with natural laws is an error. Human laws are prescriptive and can be broken. Natural laws are descriptive and cannot be broken. Even if they were some kind of objective mechanistic principles by which certain actions we call immoral were punished by the universe (and there are, to some degree, as natural consequences of actions), it wouldn't give a truly objective normative ethics, because to suggest and imperative or "ought" inherently requires a subjective experience.
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>>277864
>to suggest and imperative

*to suggest an imperative
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>>277838
It doesn't under current interpretation.
He's trying to say it didn't apply to the people under state jurisdiction until 1925, only under federal jurisdiction.
It's kinda of a wonky argument because the feds where often the ones taking guns away from people, namely the native Americans, while states often had never really done anything about it. A few Wild West towns did ban firearms, but that usually resulted in bloody shootouts. Really if we are to go by current and historical backing, if the federal government didn't have the 2nd amendment enforced, we'd probably have more lax gun laws and less import bans.
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>>277783
Does that include Indian land?
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>>277838

If you view that the "proper meaning" of the constitution is what the Founding Fathers had in mind as to what it meant, then state level governments should be able to ban guns wherever and whenever they want (or at least as much as the state constitution allows), because the Founding Fathers never intended for any of the bill of rights to apply to state governments.

>>277872

Well, it doesn't because SCOTUS is not full of original intentists. /pol/ on the other hand.....

>It's kinda of a wonky argument because the feds where often the ones taking guns away from people, namely the native Americans,

The Native Americans in general are a bit wonky from a legal perspective because half the time they're considered wards of the state, and the other half of the time they're considered sovereign nations that the U.S. has treaties with.

>while states often had never really done anything about it.

*coughcruikshankcough*
>>
I was tboned making a left hand turn into a parking lot
The way was clear and he turned a corner and my back end

Is it my fault?
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>>278191
let me guess
not leaving enough space resulting in an accident or some shit, right?>
>>
>tfw studying tax law at the moment

just kill me
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>>279340
is tax law interesting? I've heard it's cool
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>>279340
Hey so am I!

What country are you in?
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>>279385

Sweden.

>>279379

Maybe once you're good at it. It feels rather confusing at this point.
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>>279398
Netherlands here.

Hows the pay in Sweden?
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>>279398
>Sweden.
>civil code
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>>279421
>Common law

Taxing people by beard length tier
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>>279442
>Taxing people by beard length tier
I think you have common law and islamic law confused m8
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>>279417

Decent I think.

>>279421

How does it feel to be a >muh common law brit and getting keked into having lots of EU legislation (any brit can answer)?
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>>279453
Could be.

What's the strangest taxes you guys have had? Hearth tax or did you guys have a window tax?
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>>279462
Not British, we have common law in Canada

>>279466
Income tax, sales tax, property tax, capital gains tax, liquor and tobacco tax, and that's about it.
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>>279484

Your government doesn't tax the shit out of gas?
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>>279498
not directly, but yes there is an energy tax I guess. The new liberal government wants to implement a carbon tax which will be hell
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>>279484
http://www.efile.com/unusual-strange-funny-taxes-throughout-the-world-and-history/
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>>272050
>>272081
>>272143
I have to say though that the distinction isn't that black/white, as the influence or jurisprudence is really big too, as some laws, like the principle of nulla poena, which is nothing more than a single sentence in the code, but an enormous complicated law completely based on jurisprudence behind that
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>>279519
Yeah the TV tax is Britain is fucking dumb I'll agree with you there. We don't have that funny business here. That's also not common law, that's just government being government. Commonlaw involves less government in law making
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>>279519
>>279546
another dutch tax lawyer here. Though the system isn't that weird in terms of weird taxes, the netherlands are [spoiler] one of the biggest tax frauding countries in the world, which is used by wackos as Khadaffi and russian oligarchs[/spoiler], so it's still quite fucked up
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>>279562
Tax frauding, how so?

It's called a competitive business climate.
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>>279589
lol. It's a well known fact that the dutch system makes it easy as hell to create a legal entity here with almost zero substance, and so making it an ideal part of money evading schemes. Just look at those trust agencies like Intertrust, they business is literally creating mailbox companies for shaddy figures and big corporations to use the dutch participation exemption
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>>279656
I hope the EU won't step in.

Don't feel like losing my job prospects desu.
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>>279707
Canada here

How do European laws passed by EU parliament affect individual countries? Can you give some examples?
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>>279789

All kinds of ways, but mainly things that have to do with the internal market and the freedom of movement within the union.

Competition laws, for example.
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>>279789
Community law takes precedence over domestic law.

The theory is that all EU laws apply to every member state. The whole idea is to create a common market without barriers such as import duties or illegal state funding for companies. Beer produced in Ireland should be able to be transported all the way to the Baltic states (Estonia) without being subject to some sort of measure that might make it less competitive with local Estonian beer (outside of transport cost that is).

It's kinda hard to name a specific case without going into a specific part of EU law such as competition of quantitative barriers.

Here is a relatively simple case.

https://en.wikipedia.org/wiki/Procureur_du_Roi_v_Beno%C3%AEt_and_Gustave_Dassonville
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>>279839
>Competition laws,
Didnt they have this in Berlin which prompted the construction of the Berlin wall? Western Berliners would go to the East to get subsidized goods
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>>279855
>Beer produced in Ireland should be able to be transported all the way to the Baltic states (Estonia) without being subject to some sort of measure that might make it less competitive with local Estonian beer (outside of transport cost that is).
We have a free trade agreement in the United States, but all it stopped was a manufacturing tax and shifted that burden onto the populous with a sales tax. Given we have different currencies with the United States, and the borders aren't freely traversable I don't think competition laws or anything like that applies.

There's also no "north american union" passing laws. They'd just be terms of the free trade treaty
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>>279789
>>279839
>>279855
It goes actually really far, as the European Court Of Justice can usually overrule every type of national legislation if it isn't in accordance with EU directories. any dictum from the court has to be applied by every member state, surpassing every national law that goes against it directly
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>>279885
Americans signing international law agreements is a charade anyways.

https://www.globalpolicy.org/component/content/article/157/26883.html
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>>279918
Then Canada would just violate the agreement for something else.

Usually how big purchases between Canada and US work, is like quid pro quo.

The reason Canada has held off on buying those fighter jets from the US is because the US canceled keystone pipeline from Canada into the states.
That's not the official reason, but that definitely played a roll. US always likes to call us their greatest partner. Not ally tho, that stays with Britain. Oldest ally France. etc.
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>>280162
Don't you guys have an enormous supply of oil the US is feeding off?

I always wonder how a country like Canada can form (in terms of politics) next to a country like the US.
>>
This might sound dumb, but how do I get ''good'' at law?
I'm studying law, and I got kinda stuck and things are moving again, but what really worries me is the fact I'm not really becoming an expert, I'm simply passing fucking exams mechanically.
Which books would you recommend, forums, websites, anything.
Law will be my profession and I really feel like shit when I'm more versed in some hobbies of mine like history than I am at law.
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>>280538
Oh, sorry, I didn't see this is common law thread.
Civil law pleb here.
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>>280548

Who cares, all lawfags welcome.

Honestly, I think it's a matter of actually working with an area in order to get good at it. Studying and passing exams just teaches you the basics.
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>>280677
Yeah I know, but I want to self-improve, read, learn stuff.
Just like history or history of warfare is my hobby, and I'm sadly more versed in that than in my professional choice. It just feels bad.
I want to learn about law outside of my studies.
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>>280210
okay I'm back

you said
>>280210
>I always wonder how a country like Canada can form (in terms of politics) next to a country like the US.

One of the ways is "we're not American"

One of the reason the Monarchy, even among new Canadians is popular, is because it's not American. Canada has the second or third largest oil resevoire in the world, except the production of our oil is 'dirty' because it's in oil sands so all muh climate change people aren't happy with it.

A lot of Canadian culture is literally not being American. Which is why the left and centre were really against Harper who was right wing, because he tries to push Canada more toward American right wing etc.
Don't want to turn it into /pol/ but a lot of Canadian culture is literally not being American.
>>
bump for tomorrow
>>
Does anyone here actually practice law
Is it as miserable as everyone says
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>>281986
I'm a canadafag and I really don't care about not being american. I'm not sure what it's supposed to mean. It doesn't describe a culture or a behavior or anything at all. It's only something that a person of nationality might find themselves repeating if they are often confused with another nationality, which is entirely understandable.
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>>272561
>it enhances predictability.
No.
It creates a situation where there is a flow chart
0. What does the law say?
1. Is there a valid precedent? If so, fuck the law
2. Can the opponent argue the precedent is not right this case?
3. If there isn't a precedent, its going to be a super scary case regardless of outcome, if there is talk about money or commerce
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>>272852
>Whether or not this would raise an estoppel in the present case we are unable to determine at this time.
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>>282628
>Is there a valid precedent? If so, fuck the law
>2. Can the opponent argue the precedent is not right this case?
>3. If there isn't a precedent, its
So let's just codify every possible situation ever instead
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>>282271
Me father does, he likes it
He does real estate
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>>283347
>Can the opponent argue the precedent is not right this case?
you don't understand how it works. It would be the Crown or the defense who cites former cases to use in favour of their position.

It's not like the Judge says, in accordance with R. v Dobson, you're guilty of this crime. The Crown could say, in R. v Dobson there was a similar circumstance where Dobson was found guilty etc.

The the defense could then argue, well in accordance with R. v Jacobs, and R. v Collins, the accused was found not guilty on account of ABC etc.

It's like presenting evidence for your case by using past cases. Civil code is just arguing to the book
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>>272887
>do they just use precedents without having codified them? that's weird.
it's by convention. After the Land Registry Act in Ontario a lot of it was codified in government legislation; but initially it was all by precedent and convention. The Land Registry Act was basically to give the government a list of who owns what property and allows municipalities to properly zone development areas.
The LRA also eliminated squatters rights
>>
>>277755
>state governments being bound by the Bill of Rights ruined America
No one thinks this. What are you doing?
>>
>Ctrl+F
>"v."
>only one hypothetical case citation
Have we made literally zero references to American cases or have we somehow forgotten how to cite cases properly?
>>
>>283935
i think I just typed v not v. desu
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>>271886
>they very clearly thought that the 2nd amendment only applied to the government in Washington.
This just doesn't follow from 19th-century Supreme Court rulings, which were the product of later generations for whom something close to absolute governmental power was the fashionable idea.
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>>282271
I do. I honestly enjoy the actual work for the most part. The pay and job security are shit these days, but it seems like it's that way for pretty much every professional category at this point.
>>
>>284618

https://supreme.justia.com/cases/federal/us/92/542/case.html

>The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.


From an 1875 ruling.
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>>284796
>1875
>Founding Fathers
You're just making my point for me: the decisions overturned by Gitlow are from a much later era.
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>>284870

You said, and I quote from this post :>>284618


>This just doesn't follow from 19th-century Supreme Court rulings, which were the product of later generations for whom something close to absolute governmental power was the fashionable idea.

19th century supreme Court rulings, and what do you know, knocking against the idea of absolute governmental power.

If you want earlier examples of the notion, in line for when the founding fathers were around, I'll note the 0 number of cases challenging the official state (taxpayer supported) churches that 8 of the 13 individual colonies and later states had.

http://undergod.procon.org/view.resource.php?resourceID=69

Which, you know, would be a pretty ridiculously open violation of the Establishment clause.


It was so strongly understood by the founders and the generation immediately after them that it wasn't even challenged, let alone successfully.
>>
>>284618
Not the poster you're quoting, just stepping in to observe that the current public debate over the 2nd amendment is growing increasingly sloppy, confusing, and hypocritical. For instance, certain laypeople confuse the right to bear arms with the perceived right to self-defense. Some in their readings of the amendment show how little they know of grammar. Others rail against the expansion of the 2nd amendment's protections as technology has advanced, while worshiping every expansion of the 1st amendment's protections along practically the same lines. It all is very toxic in my opinion.

Clearly the 2nd amendment protects the right to bear arms in some form. In a militia? Undoubtedly. Of black powder muzzle loaders? Sure. Bolt actions? Semi-autos? Full Autos? Proton torpedos? Here is where the debate becomes intellectually dishonest.

Some will claim by means of dubious reasoning that the government is precluded from restricting weapons at all; others that the government may restrict all weapons. Either extreme could triumph with a constitutional amendment, yet neither will admit that the current amendment is insufficient for their ultimate desires. I think this is what personally bothers me the most.
>>
>>284912
>>284908
Why dont you guys just use fucking rules?
>>
>>284908
The First Amendment is a separate issue, since it expressly applies only to Congress.
>It was so strongly understood by the founders and the generation immediately after them that it wasn't even challenged, let alone successfully.
This isn't a legal argument; you can't deduce a particular interpretation of a law from the lack of court rulings addressing its interpretation. Look, I get that it's an ambiguous point and that many if not most people understood the Bill of Rights to be binding on the federal government only pre-1868. There's just little to support the idea that that's only plausible interpretation, at least with regard to the 2nd-8th Amendments.
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>>285041

Because our legislatures are full of idiots. And because a common law system allows for greater flexibility in application, since you can see effects and make rules after a bit of field experience, instead of trying to work everything out from the get-go.

>>285050

Well, the first court ruling I'm aware of that addresses the subject is Barron v. Baltimore, which again notes that Bill of Rights only applies to the feds, but that's 1830s, not Founding Fathers era.

>There's just little to support the idea that that's only plausible interpretation, at least with regard to the 2nd-8th Amendments.

I don't really see anything to support the other perspective at all, however. What pushes there were to incorporate said amendments were only beginning in the 1920s, and even then they were sporadic. Hell, we still don't have 5th amendment style necessary grand juries at the state level.

Which at least from my point of view, leads the "feds only for Bill of Rights" winning by default.
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>>285041
Stop with the civil code meme
>>
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Americans

What exactly was Dred Scott v. Sandford about? I know that Scott who was a slave sued Sandford, but did it have anything to do with emancipation?
>>
>>285649

Very basically, it was whether a slave had standing to sue in court at all, which the supreme court of the time determined they did not.

The very tl;dr (and a gross oversimplification, at least read the wikipedia article if not the case itself) is that you had a southern man taking his slave up into what was then a free territory, not even a free state. They were there for a while (some sort of army posting? I don't remember exactly anymore), and then went back home to the south.

When they get back, Scott tries to sue for his freedom on the basis of being taken to a free territory, and was shut down.
>>
>>285677
okay so I skimmed the article, so basically it was just the Supreme Court saying black people cant be citizens? Why is this such a landmark decision, it just sounds like the courts were assholes
>>
>>285696
The problem was that the Supreme Court ruled that slaves were property, not people. What ended up as a consequence was that because an escaped slave was property, they had to be returned to their masters if they were caught after escaping. Northern states pretty much said, "Fuck that." And told the south they'd have to come and get their own slaves. The Dred Scott decision just made the North and South that much more antagonistic towards each other.
>>
>>285649
Slave owner takes slave to free state, slave sues for freedom, loses. It was politically very important, but not legally part of emancipation, which happened under the Thirteenth Amendment.
>>
>>285725
so it was one of the many catalysts of the civil war
>>
>>285649
>Sandford
Sanford
ftfy
>>
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>>285914
>>
>>285914
sure thing
>>
Who /licensed attorney/ here? I passed New York's bar exam this July but still have other stupid little hurdles to jump.
>>
>>286973

I'm licensed in PA and in NJ.

For the record, I'm the anon who posted the Mayo v. Satan and the Bradshaw v, Unity Marine cases.
>>
>>286973
I should have asked instead who /willing to hire a soon-to-be-admitted NY attorney/ here?

>>286981
Neat. Do you find yourself appearing in court in both states? I couldn't be arsed to take the Jersey bar.
>>
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>this triggers the anglo
>>
>>286973
What is articaling like in the US? In Canada it's a year before you get called to the bar
>>
>>288607
>113th edition
Politcians update your laws too often requiring them to be codified. Superior common books mostly contain cases
>>
At work now, we do real estate law. We do have some codified laws, like the condominium act which is a series of rules for the development and ownership of condos
This is government legislation, however the courts can make laws to cover anything the legislation missed, or if there is a dispute with the legislation then the courts can read in new laws.
With real estate there's a lot of legislation governing transactions and construction to prevent people from suing each other
>>
>>271759
It's just shorthand for the state, like a US trial being State of Hawaii vs X, or Federal Government vs Y
>>
>>289323
In Canada it would only be "John v. Ontario" if it were a conflict between the individual and the province. More often this happens with businesses suing the province usually because tax reasons or the feds and first nations group taking the province to court over land claims.

You can't make a case against the Crown, it would be against the government.

>Taking a pic of my screen
>>
>>277588
I wouldn't fit in either.
But legal positivism was a mistake, you cannot completely remove morality from the function of a system of "oughts", if a law is so regardless of its moral value, then we have unveiled the true nature of the law: its arbitrary, essentially made up and only works if you play along or if you are coerced into doing so.

Social "scientists" need to stop pandering to the hard sciences.
>>
>>289323

In R v. Collins, Collins was being questioned in a pub over alleged drug possession but she wouldn't open her hand, then the cop grabbed her by the throat and held her to the ground and she dropped a bag of heroin which the police used as evidence against her,
During the trial Collins lawyers argued it violated her right of freedom from unlawful search and seizure, and the Crown couldn't prove it was justified so the trial judge ordered a new trial where the heroin couldn't be used as evidence because it was obtained by violating her rights
This set the precedent that evidence obtained which violates your rights is inadmissible as evidence in trial
So Since the cops had no proof she had drugs she was acquitted by the jury
>>
>>289434
>>289360
>HM the Queen
>Canada

Why do this still?
>>
>>272809
I don't get how this is funny
>>
>>272893

>Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon-- Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing.


What? How does someone like this even dress himself, much less become a lawyer?
>>
>>290234
Read that post
It was a meme trial
>>
>>291480
And make it completely illegal? Yeah me too

R v. Sharpe held that producing it for yourself is permissible but distributing it is illegal. They couldn't ban the production of it because of freedom of expression.
>>
>>291870
Statist prick
>>
>>291877
I'd rather be called a statist than a paedophile
Go back to /b/
>>
There is a developing civil case in New York right now in which the defendant (an attorney) is attempting to invoke trial by battle on the basis that it was inherited from English common law and never abolished after the American revolution.

https://iapps.courts.state.ny.us/webcivil/FCASSearch?param=I

(search case 150175/2014)
>>
>>292527
wtf, no judge would allow it. Sure he can argue all he wants, but only some wacko judge would see that case
>>
>>272726
Juries are only present for indictable criminal cases, really, in English Law. The decisions at the higher courts are written down and are available in many law reviews (which you'd know had you studied law). Try not to talk about things which you know nothing about.
>>
>>272794
>they're interpretations of existing legislation
>legislation
This is fundamentally untrue. As other people have mentioned, the law of murder was established from common-law judgments. There was no Act which established such an offence; and that Act was later interpreted.

I also don't understand why you think there is a significant difference in saying that judges only "interpret". Whilst they do this, the effect of the judge's discretion is profound. It does not matter so much what the judge is interpreting.
>>
>>272832
Which section of the LRA revoked the land law principle that land is owned by the Crown and freeholders merely have an exclusive right to possess? Sounds like you're chatting shit.
>>
>>272846
House of Lords no longer exists as a judicial committee. And no, the Supreme Court (nor its predecessor) could revoke "unconstitutional" statutes because the fact they were statutes made them constitutional.*

*This is the general principle with a number of qualifications. Mainly, the Supreme Court can review Acts of Parliament in line with EU law. Going into this would take too long and I can't be arsed.
>>
>>292956
This is the real property act which is included is part of the British North America act;

http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2723&context=rso

this act is what allowed for private property; the Crown gave land to people so they would come to Canada to settle as well. This is the first Act in Canada about property ownership

Here is the LRA
http://www.ontario.ca/laws/statute/90l04/v7
the only bit about leastholding it talks about is against a private landlord, not the monarch.

HM the Queen may own all Crown land, which is like 85% of land in Canada, but there is most definitely private property m8
>>
>>272923
>likelyhood
Where did you do your law degree? I am guessing not Queen's College, Cambridge.
>>
>>292985
Oh, I thought you were correcting the other poster and saying that in England & Wales the Crown does not "own" all land. LRA is the principle statute in English land law, so it caused some confusion. Apologies.
>>
>>292527
This is the type of nonsense which annoys me. It's the type of reasoning which leads people to conclude that it's legal to kill a Scotsman within the walls of the City of York because the "law" was never repealed. It makes no judicial sense; consistency is not challenged because there is no reliance, and even if there were reliance on this law by people, the judge would simply not allow it.
>>
>>293009
no I was on about Canada,

I think I'm mistaken too because I just found this on google

http://www.whoownstheworld.com/canada/

which says
All physical land in Canada is the property of the Crown, Queen Elisabeth 11. There is no provision in the Canada Act, or in the Constitution Act 1982 which amends it, for any Canadian to own any physical land in Canada. All that Canadians may hold, in conformity with medieval and feudal law, is “an interest in an estate in land in fee simple”. Land defined as ‘Crown land’ in Canada, and administered by the Federal Government and the Provinces, is merely land not ‘dedicated’ or assigned in freehold tenure. Freehold is tenure, not ownership. Freehold land is ‘held’ not ‘owned’.

However, all land that isn't Crown land, i.e. owned the government, is registered to individuals under "title" which means ownership. I've neverheard of Canadians being freeholders of the Crown here, but maybe I'm wrong.
>>
>>289366
It doesn't really remove morality from law; it removes morality from the interpretation/"ascertainment" of law.

Remember, law itself is churned out by legislature, and so moral concerns are for those people to discuss; and presumably they have discussed those concerns. Therefore, it's a bit dubious to say that morality is not part of the system or function of law.
>>
>>293038
I don't think the distinction between interest in land and ownership is hugely meaningful. In English Law, it's only really distinguished nowadays so that when a person dies without heirs to his estate, that interest in land is returned to the land to dispense according to their needs. Meaning they can sell the sad lonely bastard's flat and make a few quid off it.
>>
>>293084
*returned to the Crown
>>
>>293032
Well, since no true Scotsman travels to York for his porridge it's a moot point ;)

Actually, anachronisms along these lines are one of the reasons I like common law, the occasional moral panic notwithstanding. It certainly keeps people on their toes.
>>
2L here, ask me anything
>>
>>288809
>articaling
I have no idea what that means.
>called to the bar
I don't know what that means.
>>
>>285117
Incorporation comes from the 14th Amendment. The 14th guarantees due process in the states, like the 5th guarantees due process in the federal government. So if the Court says a right is inherent to due process, then it gets incorporated. That's why grand juries and even double jeopardy aren't incorporated, because the Court has ruled they aren't necessary to justice (i.e., a system without grand juries or protections against double jeopardy aren't inherently unjust, versus say a system without guaranteed right to counsel, which would be).
>>
who /common law right to trial by combat/ here?
http://time.com/3989243/game-of-thrones-lawyer-trial-by-combat/
>>
>>293383
someone already brought it up. The judge will refuse to have it. "it hasn't been outlawed", no but by convention it would constitute murder which would be illegal.
>>
>>293383
That seems like obvious grounds for discipline. Frivolous motions and arguments? Slap some sanctions on that guy.
>>
>>293406
>implying courts don't murder people
>>
>>293377

Except for the fact the 14th Amendment had already been around for a while by the time Cruikshank came along, and the Court there didn't see any particular need to start incorporating things.
>>
>>293421
Only in America, even then after conviction. When they read the sentence they also say something like you'll be put to death in a manner prescribed by law
>>
>>293063
>presumably they have discussed those concerns
But this is were the error lies, there is no defense against the immoral law, only an assumption that the morality of the law has already been taking care of, and a "life sucks" if it hasn't. Checks and balances exist for the merely legal sections of a system of laws, there is no reason why they shouldn't exist for the moral sections.

A theory of law cannot leave a out moral judgment of the analysed system, to limit oneself to describing the law, or to interpret it strictly within itself is nonsense, as the law is not a material object capable of existing outside of one's mind, it holds no value as an existing thing, like one would place in the laws of physics. It would have as much value as a general theory of the Yu-Gi-Oh! rulebook.
>>
>>295951
>value as a general theory of the Yu-Gi-Oh! rulebook
I never used the codified rules. We just developed our own rules on a case by case basis
>>
>>296349
This is probably how most rules in sports were created too
>>
>>295951
Well, there is some normative approaches to the interpretation of what the legislature meant. As in, moral considerations are taken by the judge when he is interpreting what a statute means, how it should be enforced. However, the actual substantive areas of law are given effect merely by virtue of its being set out by statute.

If the legislature passes a statute which kills anyone who is born with green eyes, that is the law. No matter how it matches with the morality of the citizenry or the judiciary.
>>
>>297509
>statute which kills anyone who is born with green eyes
but I have green eyes ;_;
>>
Who cannon law here?
>>
>>298371

Nakar plz go.
>>
>>297509
>that is the law
This presents the obvious problem that the law is an ought statement, if an evil law comes to be, it would state that we ought to perform said evil. Sure, in a purely legal approach, that alone does not unmake a law.

However, there is no reason for us to "respect" law in such a way as to only judge a legal system via internal consistency, since it is literally something that someone made up.

Every legal system is one revolution (or less drastically, a reform) away from having the same value as the klingon legal system. Moral considerations outside of those already provided by law should ultimately be taken into account, or else they will force themselves into account.

>>296349
thats what they did on the show actually
>>
>>298770
>thats what they did on the show actually
I remember I played it with my cousin. When a problem occured we didn't look to the rules, we'd come up with a solution or compromise and play with that rule from then on

Quality common law yugio analogy
>>
>>298770
Worrying about moral values is for philosophers and politicians. I see no sensible reason why morality might come into a legal principle. This is largely because the law, via legal positivism, is "respected" by its being enforced.

Whether people are happy or unhappy with enforcing the law matters not a fucking jot because they still enforce it.
>>
What are your opinions on the first degree murder charge of that Chicago cop?
Why is it first degree and not second degree? That's what the prosecution has to prove I guess.
Could this set a precedent that police shootings can be first degree murder?
>>
>>300400
On the contrary, it matters because it is enforced.
The law is inherently a moral concern.

Physics deserve to be respected as is, so does chemistry and geography. This is because these things exists independently of the human existence. We don't ask if its moral that a rock sinks in the sea, because that is something outside of human action.

The law, however, does not exist independently from men, it is something created by men. And like every other human action, moral considerations are always relevant. When we consider that laws are legislated according to morality (laws are an "ought/ought not" statement), we realize that legal norms are shaped according to a higher order of norms. When an immoral law (one that does not conform with the higher order) is passed, we call that a "mistake" in the best case, and "deliberate evil" in the worst. If we can admit that the legislator made a mistake in legislating immorally, there is no reason why we should respect that mistake.

Law theorists should never forget that they are not real scientists (no matter how much some want to be), they are sci-fi critics, theorizing about one of the million ideas for a law system that lucked its way into power. The only meaningful difference between Klingon Law and American Law, is which one can get you killed if you disobey. Something this vain and dangerous at the same time can never be respected enough as to shield it from outside moral judgement.
>>
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>>300932
>Physics deserve to be respected as is, so does chemistry and geography. This is because these things exists independently of the human existence.

orly?
>>
>>300932
So because law is human-based instead of a natural science, moral judgments must be made in order for a law to be enforced. This is wrong in two ways.

First, the law is enforced even if the action of adhering to the law is immoral. Secondly, human interaction with the subject matter (which makes law not a natural science) does not necessitate moral judgment in order for the man-made thing to be true. For example, Hitler killed Jews no matter if the act of killing Jews is immoral, or if the act of reporting the killing of Jews in history books is immoral. In psychology, intergroup dynamics tend to vilify out-groups in competition, according to Robber's Cave, whether or not you think vilifying competing out-groups is immoral.

You have said nothing here which explains why "the law is inherently a moral concern".
>>
>>300535
No
I think they'll try to change it to lower charge if not they're going to lose the case
I'm pretty sure they tried the same shit with the zim zam man
>>
>>301108
He's already been charged, there would have to be a trial within a trial (I forget what it's called) to lower the charges because I doubt the prosecution is going to drop the charge before trial.
Zim zam was charged with second degree murder. The defence convinced the judge not to include manslaughter as a charge in the jury instructions. Maybe that's why he got off second degree.
>>
>>301025
I meant that the human did not design the rules of physics. Unlike the law.

>>301062
The law is inherently a moral concern because every law is an ought statement. It says what "should" happen.

>the law is enforced even if the action of adhering to the law is immoral
Whether the law is enforced or not is immaterial to the question of "should" a law be enforced.

>Secondly, human interaction with the subject matter (which makes law not a natural science) does not necessitate moral judgment in order for the man-made thing to be true. For example, Hitler killed Jews no matter if the act of killing Jews is immoral, or if the act of reporting the killing of Jews in history books is immoral.
Its more than human interaction, its human creation.
Yes, I agree with both examples. But that is not the issue.

The matter is not whether X is law, we agree on what makes a norm into a law.
The issue is whether X should be treated as law and followed if found immoral.

We can describe the killing of jews, and we can describe treatment of out-groups. But law is something that we can choose to ignore and change. The question is "Why shouldn't we?". Why should we (civvies and cops) follow an immoral law? Why should the internal consistency of a legal system outprioritize the actual content of the law?
>>
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Muh natural laws
>>
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anything not based on the BGB is shit
>>
So how does a typical civil court case proceed in common law country?

I have only experience from civil law country, so a little explanation of process from people working with common law would be great.
>>
>>301334
>The matter is not whether X is law, we agree on what makes a norm into a law.
The issue is whether X should be treated as law and followed if found immoral.

Well, that's perhaps what law should be like. Judges saying the legislature says person X ought do Y. However, that's a great difficulty in that it places a whole lot of direction on judges when their opinion might not reflect the moral beliefs of the populace, and indeed probably do not.
>>
>>302066
1. You fill in a form.
2. You say your complaint.
3. You appeal to a statute and perhaps a judgment (if it established a legal principle you're appealing to).
4. ?????
5. Profit.

How do you expect it to be?
>>
>>302066

By civil court case you mean as opposed to a criminal one? Or do you mean as trials function in civil law countries? The former I can help you with, the latter, I don't really know much about civil law countries.
>>
>>302082
*Judges saying the legislature says person X ought to Y; and then the judge determining whether that ought is moral.

Apologies.
>>
>>302100
as opposed to criminal one

>>302095
common law countries have a form for starting a case?
how long does it take for court to process your motion to start a case?
do you have to pay some court fee before the proceedings?
how do you present evidence and witnesses to court?
how are you summoned to trial? what does the court do, if they cannot summon witness or defendant to the trial?
>>
>>302059
>Civil code adopted from Napoleon and changing the name
That's Quebec tier law
>>
>>302162
>common law countries have a form for starting a case?
Yeah, they are very complicated forms. Historically, if you had a complaint to the court, you'd buy the scroll off the court and then fill that scroll in with your complaint. As the law became more complicated, you got populated scrolls for each type of case one might bring to the court. And then lawyers started filling them in for people when the law got really complicated.

So people buy the forms for monies, but afaik they don't have to pay any other court admin fees up front.

>how do you present evidence and witnesses to court?
Largely written testimony, prepared by a lawyer.

>how are you summoned to trial? what does the court do, if they cannot summon witness or defendant to the trial?
For civil, there is very little the court can do to compel people to offer testimony or be examined by the court. You either find a willing witness to support your case, or you don't have that witness -- it's as simple as that. A defendant is not "on trial" for civil, and they need not mount any defence to the complaint.

As for the length, it depends on the court, the case, the country. For England and Wales, probably about 6 months for everything to be completed.
>>
>>302162

So, a civil case starts with filing some sort of complaint, which will list numerous factual assertions and conclude with what's called a cause of action, which is basically the legal justification for the lawsuit.

Whomever the other party or parties will get a copy of this form, at which point they will affirm or deny each of the factual allegations, as well as plead a general response to the cause of action (basically whether or not they'll fight it)

Defendant then moves to dismiss the case if they think there is no cause of action.

Assuming it survives, either party may move for a summary judgment if there are no outstanding points of fact disputed and the question is solely an issue of law.

Assuming it survives that, it will go to trial, and both plaintiff and defendant will assert whatever evidence they have for liability or non-liability.

You might have other motions during or immediately after the trial, but those get a little involved.

Eventually, the trial ends, and either the judge or the jury lays down if they think the defendant or defendants are liable, and if so, to how much in the way of damages.


One or both parties may appeal that decision if they think there was an error made in the trial.

Please note, that at any point during this process, (even during a live appeal) the parties might come to some kind of agreement which would obviate the trial and agree on a settlement payment of some sort. This happens an overwhelming majority of the time.
>>
>>302226
>For civil, there is very little the court can do to compel people to offer testimony or be examined by the court. You either find a willing witness to support your case, or you don't have that witness -- it's as simple as that. A defendant is not "on trial" for civil, and they need not mount any defence to the complaint.

So does the defendant lose the case by default for not showing, or presenting any counterclaim or evidence?

And do common law countries have some type of cases, where the court has to provide evidence? They are called here non-contentious actions. Inheritance proceedings for example or action about legal capacity of person or childcare proceedings.

>Eventually, the trial ends, and either the judge or the jury lays down if they think the defendant or defendants are liable, and if so, to how much in the way of damages.
Are there other judgements, in cases where monetary recompensation (which I believe damages is) is not sought, but other remedy? like returning of item, determining of ownership or restitution
>>
>>302226
>>302239
Also thank you for responses.

If you have any question about civil law ask away.
>>
>>302347
Which civil law country do you practise in/are familiar with?
>>
>>302122
This is one way to scape the problem. As long as the morality of said ought isn't already established by legislation. Checks and balances, even the body of the law needs those.
>>
>>302358
Slovakia
>>
>>302336
No, the defendant's position is obviously damaged somewhat by not providing adequate legal counsel for himself, but the judge is a reasonable person and will review the case himself to seek the merits of the complaint. You'll often see in judgments the judge making his own discoveries and disagreeing with the two parties about what happened, anyway. He'll just come outright and say "I don't think this actually happened this way", if he feels the need to do that. So imagine the implicit defence he provides to the defendant who is not present; it's going to be quite great.

>Are there other judgements, in cases where monetary recompensation (which I believe damages is) is not sought, but other remedy? like returning of item, determining of ownership or restitution
Well, generally because of the expense of going to court, this is generally not the case. But yeah, there are many times where the person offering the claim will request specific performance (i.e. you said you'd sell me the car and I want that contract to be performed; I want the car). There are also injunctions which can be offered, usually as part of the discipline within civil law called tort.

As for non-contentious actions and the court providing evidence, I am not entirely sure what you mean.
>>
>>302379
How does a civil trial procede in Slovakia?
>>
>>302557
probably very similar to how a civil trial procedes in most civil law countries
>>
bill of rights: yay/nay.
>>
>>304279
Absolutely
>>
daily reminder that American common law is bastardised and they interpret statutes and their Constitution like retards.
>>
>>304488
Example please
>>
>>304521
the very fact that US Supreme Court judges have these stated philosophies such as 'originalism' and 'textualism'. The whole nomination process has made US jurisprudence divided along very partisan lines.

US common law has diverged too much from English law.
>>
>>304279
neg. We don't have one in Australia and I think it's a bad idea to introduce one, even though some people advocate for it.
>>
>>304550
It worked well in Canada
Until I actually studied the charter in a class at uni I used to think it was kind of dumb but it's actually top tier
A lot of important precedents were set during the early days of the charter in the 80s
>>
>>304537
>The whole nomination process
This
Like Britain supreme court judges are appointed by the current prime minister but since they sit until age 75 or death a PM isn't likely to select more than 1 or 2 in their term.
I think Harper appointed one and He was pm for 9 years
>>
Bump limit
Good thread, I'd like to see more law threads
Thread posts: 296
Thread images: 27


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