Efficacy, impact and English legal history

ЖИТТЄВИЙ ШЛЯХ, НАУКОВО-ПЕДАГОГІЧНА ТА ГРОМАДСЬКА ДІЯЛЬНІСТЬ ВОЛОДИМИРА ГАВРИЛОВИЧА СОКУРЕНКА (ДО 100-РІЧЧЯ ВІД ДНЯ НАРОДЖЕННЯ)

A MERICAN legal history is only beginning to receive from scholars the attention it merits. As yet, however, there is no History of American Law corresponding to the works of Maitland and Holdsworth for English law, and only the smallest beginnings have been made towards reconstructing the story of the development of our law. Over the course of the last thirty years several studies and monographs have appeared on the subject, but much of what has been written has been general or descriptive in character. Few have attempted to relate the history of American law to the social and economic pattern of each period; fewer still have sought to go behind the law of the early period to inquire about its sources in English and Dutch law of the sixteenth and seventeenth centuries. In consequence, there are serious gaps in the historian's knowledge, and among lawyers there are serious misconceptions about the nature of our law before i80o. Those misconceptions become significant, for example, when it is recalled that the constitutions or statutes of many states incorporated the law of the particular colony into the law of the state.' Of the three hundred years of our legal history the colonial period is especially deserving of attention. The few studies of the law of the period which have appeared bear ample witness to the opportunities which there are for thoughtful research and writing in a comparatively unexplored field. The task of reconstructing the early history of our law is not, however, a simple one. Because the background of each colony was different, and because their development in most cases followed different lines, their legal systems differed considerably. Thomas Jefferson, for example, writing in Virginia, could speak of the law of Massachusetts as foreign along with the law of the Barbados.2 Basically, to the extent that English law was common to them all, the English colonies had much law in common; however, it is essential that the separate development of the legal systems be studied before accurate generalizations can be made. To that end, a great deal of material must be sifted from court records,

David M. Rabban aims to restore our appreciation for an earlier era of jurisprudence and legal scholarship, the “historical” school of the late nineteenth century. Rabban's study encompasses both the ways in which history was employed in academic writing about law and the particular historiographical lens used by scholars of legal history. The subjects of this book are a dozen or so prominent law professors, whom the author seeks “to understand … on their own terms” (p. 1). Rabban argues that these scholars were more interested in legal history and also better legal historians than modern writers usually realize. In Rabban's account, during the late nineteenth century legal historiography in America was dominated by an “historical school” that emphasized evolutionary understandings of legal development taking place over a long period of time. The result was a focus on origins dating back to the fourteenth and fifteenth centuries; many of the scholars in this school were devotees of the “Teutonic germ theory” of legal development (pp. 184–186). In addition, these scholars were both inspired by and active participants in the communities of legal historical writers and theorists in Germany and England. Indeed, Rabban notes the significant contributions of American historians to English legal history and, at the same time, the relative paucity of work focusing on American legal history (p. 309). Following the German lead, these writers focused on a Romantic idea of an organic nation, usually equated with race; from that perspective, the development of American law was only the most recent (and hence least interesting) chapter in the story of Anglo-Saxon legal development.

The "law and finance theory" predicts that the common law system provides the best basis for financial development and economic growth, followed by Scandinavian and German origin civil law and finally French origin civil law. Referring to a number of sceptical views, this paper argues that the theory faces an identification problem, since the majority of common law countries have a market-based financial system, whereas the majority of civil law countries have a bank-based financial system. Moreover, there are plausible alternative hypotheses to explain the quality of the financial system; but that they cannot rule out that the theory refers to a relevant link between the legal tradition and financial development. Finally it is argued that the corner stone of the law and finance theory is the proposition that different legal traditions imply different degrees of investor protection. It is demonstrated that a few minor, but sensible modifications in aggregating the original indicator set produce results that are different from those reported so far and contradictory to the theory's ranking of the four major legal families in terms of investor protection. Accordingly, the validity of the theory's investor protection measures for international comparisons, the supremacy of the common law legacy in protecting investors and, consequently, the validity of legal origin variables to instrument for financial development, have to be regarded as myths rather than truths.

Constitutional law has such a long history and has experienced many fundamental dynamics of change in the field of state administration. It is unavoidable, with the many changes that have occurred, it will certainly have an impact on the system and development of the Indonesian state administration which has undergone very substantive changes. With the amendment to the 1945 Constitution, of course it has an impact on Indonesian constitutional law, because state administration is a branch of legal science which has the main source of law, namely the Constitution. This paper discusses two things, namely: First, how is the development of the theory and practice of constitutional law in Indonesia. Second, how is the development of the theory and practice of constitutional law in England and the United States. The result of this discussion is that the Amendments to the 1945 Constitution have fundamentally changed the Indonesian constitutional system. Various fundamental weaknesses possessed by the 1945 Constitution have been perfected through four amendments. At the implementation level, the expected changes are still far from expectations. The administration of the state and government which aims to achieve a just and prosperous society is constrained by various factors. Bagir Manan believes that all the anomalies in state administration during the Reformation period were caused by four main things: It was not in line with the basic conception of the 1945 Constitution, Weaknesses stemmed from laws, especially organic laws, Social behavior, Political behavior. There are differences between the theory and practice of constitutional law in each country such as one of them. In modern times, the concept of rule of law in Continental Europe was developed by Immanuel Kant, Paul Laband, Julius Stahl, Fichte, and others using German terms, namely "rechtsstaat". Meanwhile, in the Anglo-American tradition, the concept of a rule of law was developed by A.V. Dicey as 'The Rule of Law". According to Julius Stahl, the concept of a rule of law state which he calls the term 'rechtsstaat' includes four important elements, namely: (a) protection of human rights, (b) division of powers, (c) government based on laws, (d) administrative justice state business.

The paper examines the paradoxes of the UK’s legal development following its withdrawal from the European Union (Brexit), which, contrary to expectations of full legal autonomy, has revealed the resilience of integration ties and the limited extent of actual divergence. The authors explore the contradiction between the proclaimed restoration of sovereignty and the continued substantial influence of EU law on the British legal system. Special attention is paid to the mechanisms of incorporating "retained" and "assimilated" EU law into domestic legislation, as well as the role of the Trade and Cooperation Agreement (TCA) in maintaining normative convergence. Empirical evidence demonstrates that, despite political rhetoric about divergence, much of the acquis communautaire remains unchanged, with UK law in certain areas continuing to align with European standards. The paper analyzes institutional and economic factors constraining radical legal separation, including pressure from the business community and the need to maintain compatibility with the EU single market. The analysis concludes that Brexit has not led to a complete severance of legal ties but has instead transformed them into a new form of interaction, where autonomy coexists with the necessity of adapting to EU regulatory realities. The study contributes to the understanding of disintegration processes in law, highlighting the enduring nature of integration legacies and the methodological significance of the UK’s experience for other regional organizations, including the Eurasian Economic Union.

It is impossible, Alan Watson asserts, understand how law develops and how legal rules and structures relate society without examining the issues both comparatively and historically. And in the Western world, he adds, it is equally impossible understand law comparatively without a knowledge of Roman law. In this book, Watson combines his years of research in legal history with keen analytical insight provide just such an understanding. Watson has divided the book into two related but independent parts. first part, a revised and enlarged version of his 1970 volume The Law of the Ancient Romans, provides a comprehensive description of the system of Roman law. Watson begins with a discussion of law and the Roman mind and proceeds such topics as slavery, property, contracts, delicts, and succession. In part two he argues that comparative law - an area of study still in its infancy - can help us to identify the circumstances in which law changes, thereby uncovering the causes of legal development. Guided by this purpose, Watson examines the ways in which Roman law influenced later legal systems and shows how comparative law can explain the role of law in society. He ties his explication throughout individual issues. These include the structure of European legal systems, tort law in the French civil code, the structure of Blackstone's Commentaries on the Law of England, differences in contract law in France and Germany, the parameters of judicial reasoning, lessons be drawn from feudal law, and the interests of governments in making and communicating law.

The formative period of American was a period in United States legal history, which may be characterized as one of experimentation.1 The split with Britain politically also signaled a split in terms of law.2 The new nation and its lawyers and legislators were faced with choices. They could continue to use British law; they could formulate their own new and unique laws, they could borrow laws from nations other than Britain. In fact, they did all of this and more. Perhaps the least well-known and understood aspect of this period of legal experimentation and legal syncretism is the extent to which the new nation looked to Europe and European legal systems for its legal development. Some work has been done on borrowing from Roman law during this period, particularly by Roscoe Pound, R.H. Helmholz, and Peter Stein.3 In 1997 I published a brief treatment on the influence of Roman law on the development of jurisprudential thinking in the United States during this period.4 But one important aspect of such borrowing, if not full-scale reception, of foreign law in the early history of the United States has not received adequate scholarly treatment: the problem of language.

The complex relationship between language and law is a focus of sociolinguistic research, particularly in the study of legal terminology in different linguistic communities. Traditional sociolinguistic and normative-stylistic methods of analyzing legal terminology in the context of the Uzbek and English languages ​​play a significant role in understanding the complexity of legal discourse. This article explores the historical context, key figures, illustrative examples of Uzbek and English legal terms, influencers, perspectives and possible future developments in relation to this area of research. This study of language and law has become an area of growing interest for linguists, legal scholars and policymakers. The use of language in legal contexts is very concrete, precise and sometimes incomprehensible to the subject. Legal language is used as a way of expressing laws, regulations, rules and contracts, and its interpretation can determine the outcome of legal disputes, influence public policy and create social norms. Sociolinguistics, as it pertains to the legal context, encompasses not only the vocabulary used in legal frameworks, but also how cultural nuances shape these terminologies. Normative-stylistic analysis further enriches this study by highlighting the stylistic choices that influence clarity, persuasiveness, and authority in legal discourse. When we compare Uzbek and English legal terms, it becomes evident that cultural influences significantly affect the development of these lexicons. Methodological approaches to the analysis of legal language reveal both similarities and divergences between the two languages, and address the challenges inherent in translating complex legal concepts across language boundaries. The article reveals the need for a comprehensive study of the sociolinguistic and normative-stylistic method of analyzing and studying English and Uzbek legal terms in order to develop a common system of legislative language.

So much of what, so far, has constituted the grammar of mainstream historical discourse on English law can be broadly characterised as being primarily concerned with either formal legal institutions or their socio-political context. While such histories are generally useful, they fail to see what other-histories – what radically different stories – could be told instead. Such a web of other-histories, it is here suggested, require both time and imagination. By temporarily leaving mainstream historical accounts and entering into the time of legal history the centrality of so many institutional and socio-political histories of English law may have to be reconsidered. In particular, what would become clear is that one type of legal history needs urgently to be told – a history of the ‘blotted-out’. Neither included in mainstream legal history, nor excluded from it – neither visible nor memorable – the history of the blotted-out is the history of what can be found, so commonly and ordinarily, in everyday life. Mainstream legal history is either unaware of, or uninterested in, the blotted-out. Yet, it is precisely a history of the blotted-out which, importantly, would guard, in history, the possibility of law's most original imagination.

A larger body of law survives from Anglo-Saxon England than from any other early medieval community. The standard edition of early English legislation, the Gesetze der Angelsachsen of Felix Liebermann (Liebermann 1903–1916), contains roughly seventy pre-Conquest texts, to which can be added well over a thousand Charters, Writs, and Wills. If one also includes the numerous surviving quasi-legislative texts, legal formularies and rituals, and homilies derived from legal sources, it is possible to gain a sense of both the diversity of Anglo-Saxon legal composition and the centrality of such texts to pre-Conquest culture. Yet the importance of the Anglo-Saxon legal corpus lies in more than just its size. Linguists observe that the legislation of Æthelbert (c. 604) is the earliest substantial text to survive in Old English, while monastic charters of the 11th and early 12th centuries are among the latest. Historians of the English Renaissance point out that the editio princeps of Anglo-Saxon law, William Lambarde’s Archaionomia (1568), was one of the first publications to result from the 16th-century revival of Old English scholarship and that a copy now held by the Folger Shakespeare Library even contains what may be a signature of Shakespeare himself. Americanists note the influence of Old English law on the thought of Thomas Jefferson while scholars of 19th-century literature see its traces in the writings of Henry Adams. Nonetheless, this material has yet to attract the scholarly interest given to either the literature of the period or the legal developments of the later Middle Ages. The centuries before the Norman Conquest rarely feature in courses on legal history and introductory Old English students receive only the most cursory exposure to pre-Conquest laws and charters. Despite its comparatively low profile, however, the study of Anglo-Saxon law offers valuable insight into early English concepts of Royal Authority and political identity. It reveals both the capacities and limits of the king’s regulatory power, and in so doing, provides crucial evidence for the process by which disparate kingdoms gradually merged to become a unified English state. More broadly, pre-Conquest legal texts shed light on the various ways in which cultural norms were established, enforced, and, in many cases, challenged. And perhaps most importantly, they provide unparalleled insight into the experiences of Anglo-Saxon England’s diverse inhabitants, both those who enforced the law and those subject to its sway.

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

This study is intended to analyse, review and find the "Paradox of the Standard Clauses of Therapeutic Agreement and Legal Protection of Patients". In Indonesia, the concept of the doctor and patient relationship, known as the Health Services Therapeutic Agreement, still uses the standard clauses of the Indonesian Consumer Protection Act which are considered to be no longer in line with legal developments in Indonesia. This study uses the Legal Protection Theory, Health Theory and Agreement Theory as Grand Theory, Middle Range Theory and Applied Theory supported by Normative Juridical methods based on positive law (dogmatic) to examine and review secondary data referring to a law or regulation with other regulations applied in the community. This study includes research on the principles of law, legislation, comparative law, normative law, and legal history. This study found: (1) The implementation of standard clauses has not yet materialized legal protection for patients, both from the perspective of the Consumer Protection law, the Health Law and the Hospital Law, bearing in mind that the Indonesian Consumer Protection Act is no longer in line with legal developments in Indonesia, (2) The Court's verdict on malpractice cases so far has not been completely resolved in realizing legal protection for patients. As a Recommendation: (1) It is recommended that Regulators update the regulations that govern more specifically the distinction of standard clauses in the economic field from health services, (2) It is recommended that Regulators revise or update regulations on the Health Law which governs more specifically about standard clauses (informed consent) in health services.

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

In 1950, the United Kingdom was instrumental in the drafting of the European Convention on Human Rights. Article 12 of this Convention guarantees one right only, which links marriage to procreation. Over the last fifty years, there has been a gradual separation of these two aspects of family life, with parenthood replacing marriage as the organ principle and cornerstone of family law in England and Wales. This chapter traces the legal developments which demonstrate this trend and suggests possible ways in which the law will further develop in the wake of the social changes which have been experienced in the post-war period in Britain. It is the desire to draw clear boundaries which has been a major policy objective for legal developments concerning marriage, cohabitation, and parenthood. The search for certainty also explains the attraction of two different legal concepts—contract and status—as the bases for legal ties, with contract being promoted as the model to be used in adult relationships, and status as the key to establishing adult-child links.