Lex Scripta Et Lex Non Scripta: Tensions Between Law and Language in Late Fourteenth-Century England and Its Literature
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Recognising Customary Law in Vietnam: Legal Pluralism and Human Rights Nhat Thanh Phan University of Wollongong
University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2011 Recognising customary law in Vietnam: legal pluralism and human rights Nhat Thanh Phan University of Wollongong Recommended Citation Phan, Nhat Thanh, Recognising customary law in Vietnam: legal pluralism and human rights, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3455 Research Online is the open access institutional repository for the University of Wollongong. For further information contact Manager Repository Services: [email protected]. RECOGNISING CUSTOMARY LAW IN VIETNAM: LEGAL PLURALISM AND HUMAN RIGHTS The thesis submitted in fulfilment of the requirements for the award of the degree of DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG By PHAN, NHAT THANH LLB, Hochiminh City University of Law (Vietnam) LLM, Transnational Law and Business University (South Korea) FACULTY OF LAW 2011 CERTIFICATION I, Phan Nhat Thanh, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Phan Nhat Thanh 19 July 2011 ABSTRACT This thesis examines whether customary law should be more effectively recognised in Vietnam. By exploring how customary law is treated in different parts in the world, the thesis provides a survey overview of the position of customary law in a number of legal systems. Customary law is regarded as law, infra state law, or non- law depending on social circumstances and the attitude of the state. -
The British Doctrine of Parliamentary Sovereignty: a Critical Inquiry, 26 La
Louisiana Law Review Volume 26 | Number 4 June 1966 The rB itish Doctrine of Parliamentary Sovereignty: A Critical Inquiry Roy Stone de Montpensier Repository Citation Roy Stone de Montpensier, The British Doctrine of Parliamentary Sovereignty: A Critical Inquiry, 26 La. L. Rev. (1966) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol26/iss4/4 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE BRITISH DOCTRINE OF PARLIAMENTARY SOVEREIGNTY: A CRITICAL INQUIRY Roy Stone de Montpensier The purport of this argument is that Dicey and other legal positivists, Austin and Bentham among them, have propounded a spurious doctrine of parliamentary sovereignty because they have uncritically accepted a mistake of Blackstone, who in turn has mistakenly construed Coke's remarks on the nature and analysis of sovereignty, or better, the supremacy, of the High Court of Parliament. The law as a whole is a calculus,' self-contained and self- explanatory, like a circle within which in geometry it is possible to trace the delineaments of the two-dimensional plane con- tained within the circle, as Waissman explains in his Essay on Language Strata; or like language which is also like a circle - that is, as Dr. Johnson explains, a lexicographer sees language by giving definitions of words by reference to other words, and those words by other words, so that in the end words like buck and doe, female and male, he and she, are tautologous in the sense that the one has to refer to the other. -
William Blackstone) Published on Natural Law, Natural Rights, and American Constitutionalism ( Primarysourcedocument
Of the Laws of England (William Blackstone) Published on Natural Law, Natural Rights, and American Constitutionalism (http://www.nlnrac.org) primarysourcedocument Of the Laws of England (William Blackstone) Of the Laws of England (William Blackstone) “Of the Laws of England,” Excerpt 1753 By William Blackstone [Blackstone, William. “Of the Laws of England.” Commentaries on the Laws of England. Volume 1. 1753. Reprint, Philadelphia: J. Lippincott Co. 1893. Introduction, Section III. The Online Library of Liberty. Used with permission of the Online Library of Liberty.] Several footnotes have been omitted. The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions. When I call these parts of our law leges non scriptæ [“unwritten laws”], I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. -
The Evolution of Law: Continued
Digital Commons @ Georgia Law Scholarly Works Faculty Scholarship 10-1-1987 The Evolution of Law: Continued Alan Watson University of Georgia School of Law, [email protected] Repository Citation Alan Watson, The Evolution of Law: Continued (1987), Available at: https://digitalcommons.law.uga.edu/fac_artchop/494 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. The Evolution of Law: Continued Alan Watson In my book The Evolution of Law' I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrationsand for them and for other readerswho, whether convinced of the thesis or not, would like furtherevidence, I want here to bring forward a few extra significant examples. I In the first chapterI wantedto show that it is, above all, lawyers thinking aboutlaw, not societal conditions, that determinesthe shape of legal change in developed legal systems. I chose to show as the main example that it was the thoughtpattern of the Romanjurists, ratherthan conditions in the society at large, that determinedthe origins and nature of the individual Roman contracts, and that the jurists were largely unaffectedby society's realities. -
The Textualization of Precedent, 82 Notre Dame L
Notre Dame Law Review Volume 82 | Issue 3 Article 6 12-1-2006 The exT tualization of Precedent Peter M. Tiersma Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L. Rev. 1187 (2013). Available at: http://scholarship.law.nd.edu/ndlr/vol82/iss3/6 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE TEXTUALIZATION OF PRECEDENT Peter M. Tiersma* The municipal law of England... may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex scripta, the written, or statute law. -Sir William Blackstone1 INTRODUCTION In the English-speaking world, there are traditionally two major sources of law: statutes and judicial opinions. The former consist of written texts that have been carefully drafted in advance and which have been scrutinized and formally enacted by a legislature. Deter- mining the meaning of statutes generally involves close textual analy- sis. Legislation thus came to be called lex scripta ("written law"). In contrast, judicial opinions were traditionally pronounced orally from the bench, and were thus known as lex non scripta ("unwritten law"). Figuring out what an opinion meant-determining the ratio decidendi or holding of a case-required engaging in the process of legal reasoning. This unwritten law made by judges has long been touted by the legal profession, especially in England, as being in many ways superior to the written enactments of the legislature. -
Remarks on the Study of the Civil Law. from the American Jurist, No. III
THE STUDY OF THE CIVIL LAW. FROM T~E AMERICAN JURIST, NO, III,, JULY, 1829, ~ ...... · BOSTON: FREEMAN 8t DOL~S, 81, COURT STREET. •,. · ISa9. REMARKS, &c. I. 11.n Historical Essay on the Laws and the Government of Rome; Designed a.1 an Introduction to the Study of the Civil Law. 8vo. pp. 298. Cambridge, [Eng.] 1827. z. Precis Historique dzi Droit Romain, depuis Romulus jusq1'ta' nos jours, iyc.; or, ~1n 1Iistorical Summary of the Roman Law, from Romulus to our own time. lly l\Ir. DuPIN,. Advocate in the Royal Court at Paris. 18mo. pp, x. and 106. 4th edition. Paris. 1822• . THE civil law, or, to adopt the language of Sir William Jones, 'the decisions of the old Roman lawyers, collected and ;lrranged in the sixth century by the order of Justinian, hav·e been for ages, and in some degree still are, in bad odor among Englishmen;' which, he adds, 'is an honest prejudice, and flows from a laudable source; but a prejudice most cer tainly it is, and, like all others, may be carried to a culpable excess.' (a) This hostility to the Roman law is generally as cribed by historians and lawyers to the spirit of liberty, which has been so conspicuous in the English nation, and to their detestation of the arbitrary maxims of a code, whose funda mental principle was, that 'the lvill of the prince had the force of law.'. Blackstone is of opinion, that the common law, how ever compounded, or from whatever fountains derived, having subsisted immemorially in the kingdom and survived the rude • shock of the Nornian conquest, had become endeared to the -
From Stele to Silicon: Publication of Statutes, Public Access to the Law, and the Uniform Electronic Legal Material Act Frederick W
College of William & Mary Law School William & Mary Law School Scholarship Repository Library Staff ubP lications The oW lf Law Library 2019 From Stele to Silicon: Publication of Statutes, Public Access to the Law, and the Uniform Electronic Legal Material Act Frederick W. Dingledy William & Mary Law School, [email protected] Repository Citation Dingledy, Frederick W., "From Stele to Silicon: Publication of Statutes, Public Access to the Law, and the Uniform Electronic Legal Material Act" (2019). Library Staff Publications. 133. https://scholarship.law.wm.edu/libpubs/133 Copyright c 2019 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/libpubs LAW LIBRARY JOURNAL Vol. 111:2 [2019-9] From Stele to Silicon: Publication of Statutes, Public Access to the Law, and the Uniform Electronic Legal Material Act* Frederick W. Dingledy** For a legal system to succeed, its laws must be available to the public it governs. This article looks at the methods used by different governments throughout history to pub- licize legislation and the rulers’ possible motivations for publication. It concludes by discussing how the Uniform Electronic Legal Material Act provides the next logical step in this long tradition of publicizing the law. Introduction .........................................................165 Mesopotamia and Babylonia ...........................................167 Dynastic China .......................................................168 Ancient Greece .......................................................170 -
University of Manchester Student Law Review Is a Student Led Peer-Reviewed Journal Founded at the University of Manchester, School of Law
University of Manchester Student Law Review The University of Manchester’s School of Law Student Journal VOL. II The University of Manchester Student Law Review is a student led peer-reviewed journal founded at the University of Manchester, School of Law. The journal exhibits the best academic work in law, criminology and ethics, on both the undergraduate and postgraduate levels, publishing it annually. VOLUME II DECEMBER 2013 University of Manchester Student Law Review ©University of Manchester Student Law Review, 2013 All rights reserved The University of Manchester Student Law Review and its editors are not responsible for the opinions expressed in this journal. No part of this journal may be reproduced in any form without the expressed consent of The University of Manchester Student Law Review or the University of Manchester, School of Law. All enquires should be addressed to: University of Manchester Student Law Review Williamson Building, School of Law University of Manchester Manchester M13 9PL [email protected] Typeset in Baskerville Old Face Printed in United Kingdom University of Manchester Student Law Review Editor-in-Chief Ben Adamson Associate Editors Christopher Markou Craig Prescott Jorge Nunez Melissa Bone Michal Kniec Ugochukwu Orazulike Assistant Editors Ammar Lulla Ashley Porter Étienne Farmer Lacombe Iman Nauman Sarah Burke Sonam Cheema Layout and Design Emile Abdul-Wahab Finance Officer Joseph Tomlinson Faculty Advisors Prof Geraint Howells Prof Rodney Brazier Prof Margot Brazier Prof Toby Seddon Dr Jackson Maogoto Dinah Crystal OBE V This year’s edition was generously funded by the University of Manchester, School of Law. The entire editorial team are sincerely grateful for the School of Law’s continuing support. -
The Lawyer and the Layman: Two Perspectives on the Rule of Law
The Review of Politics 68 (2006), 101–131. Copyright # University of Notre Dame DOI: 10.1017/S0034670506000064 Printed in the USA The Lawyer and the Layman: Two Perspectives on the Rule of Law James Bernard Murphy Abstract: Philosophers and lawyers have long argued about the relation of law to politics: “does the king make law” or “does law make the king”? This persistent debate stems from two different perspectives on the nature of law. Professors of law have long noted that laypersons tend to speak of “a law” and the “laws” while lawyers tend to speak more holistically of “the law.” After discussing how rival perspectives in legal theory can be compared and evaluated, several dimensions of this contrast between the lay and the lawyerly conceptions of law: the individuation of laws, the sources of law, the ethical and imperative aspects of law, and the nature of the rule of law are analyzed. The distinction between a lawyerly and a lay perspective on law is reflected in the traditional linguistic and conceptual distinction between ius and lex. Many of the classic philosophers of law, from Plato to Hobbes, are rank laymen when it comes to their descriptions of law since the lawyerly understanding of law has only very recently achieved philosophical articulation. Preface: Persistent Questions Ever since Plato distinguished the rule of law from the rule of men (Statesman 300A–303B), jurists and political theorists have continued to argue about how to characterize the relation of law to politics. Plato sharply contrasts the administration of justice according to law with the administration of justice according to the unfettered wisdom of the rulers. -
Remarks on the Study of the Civil Law. from the American Jurist, No
REl\lARKS ON ' ~ THE STUDY OF 'l'HE CIVIL LAW. J'ROM THE AMERICAN JURIST, NO, 111,, JULY, 1829, BOSTON. J'REt:MAN & BOLLES, 81, COURT STREET. 1829. REMARKS, &c. I. .11.n Historical Essay on the Laws and tlie Government of Rome; Designed as an Introduction to tlte Study of the Civil Law. Svo. pp, 298. Cambridge, [Eng.] 1827. 2. Precis Jlistorique d11 Droit Romain, depuis Romulus jus~u'a' nos jours, o/C,; or, ,/In Historical Summary of the Roman Law, from Romulus to our own time. By l\Ir. DuP1N, Advocate in.the Royal Court at Paris. 18mo. pp. x. and 106. 4th edition. Paris. 1822. THE civil law, or, to adopt the language of Sir William Jones, 'the decisions of 'the old Roman lawyers, collected and arranged in the sixth century by the order of Justinian, have been for ages, and in some degree still are, in bad · odor among Englishmen;' which, he adds, 'is an honest prejudice, and flows from a laudable source ; but a prejudice most cer tainly it is, and, like all others, may be carried to a culpable excess.' (a) This hostility to the Roman law is generally, as cribed by historians and lawyers to the spirit of liberty, which has been so conspicuous in the English nation, and to their detestation of the arbitrary maxims of a code, whose funda mental principle was, that 'the will of the prince had the force of law.' Blackstone is of opinion, that the common law, how ever" compounded, or from whatever fountains derived, having subsisted immemorially in the kingdom and survived the rude shock of the Norman conquest, had become endeared to