Understanding Common Law Legislation

Many countries use and apply the common law. The common law world largely operates through statutes enacted by a country's democratic legislature. These statutes are drafted and interpreted according to a uniform system of rules, presumptions, principles and canons evolved over centuries by common law judges. In this book, Francis Bennion distills forty years of his prolific writings on statute law and statutory interpretation to provide valuable guidance on statutory interpretation applicable to all common law jurisdictions.

Many countries use and apply the common law. The common law world largely operates through statutes enacted by a country's democratic legislature. These statutes are drafted and interpreted according to a uniform system of rules, presumptions, principles and canons evolved over centuries by common law judges. In this book, Francis Bennion distills forty years of his prolific writings on statute law and statutory interpretation to provide valuable guidance on statutory interpretation applicable to all common law jurisdictions.

A new framework for understanding contemporary administrative law, through a comparative analysis of case law from Australia, Canada, England, Ireland, and New Zealand. The author argues that the field is structured by four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

Kent Greenwalt's second volume on aspects of legal interpretation analyzes statutory and common law interpretation, suggesting that multiple factors are important for each, and that the relation between them influences both. The book argues against any simple "textualism," claiming that even reader understanding of statutes depends partly on perceived intent. In respect to common law interpretation, use of reasoning by analogy is defended and any simple dichotomy of "holding" and "dictum" is resisted.

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law’s purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history – roots that allow us to trace them back to distinct traditions. Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. The book addresses this reassessment.

As Kent Greenwalt's second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are "faithful agents" of the legislature or "independent cooperative partners." It concludes that the obvious answer is that neither simple categorization really fits-that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is "yes." This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that "canons of interpretation," such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.

A History of Law in Canada is the first of two volumes. Volume one begins at a time just prior to European contact and continues to the 1860s, while volume two will start with Confederation and end at approximately 2000. The history of law includes substantive law, legal institutions, legal actors, and legal culture. The authors assume that since 1500 there have been three legal systems in Canada - the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods. The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated or mediated intercultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including land settlement and tenure, and family, commercial, constitutional, and criminal law.