The Politics of the Common Law: Perspectives, Rights, Processes, Institutions

Overview

The Politics of the Common Law offers a critical introduction to the legal system of England and Wales. Unlike other conventional accounts, this revised and updated second edition presents a coherent argument, organised around the central claim that contemporary postcolonial common law must be understood as an articulation of human rights and open justice.

The book examines the impact of the European Convention and European Union law on the structures and ideologies of the ...

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Overview

The Politics of the Common Law offers a critical introduction to the legal system of England and Wales. Unlike other conventional accounts, this revised and updated second edition presents a coherent argument, organised around the central claim that contemporary postcolonial common law must be understood as an articulation of human rights and open justice.

The book examines the impact of the European Convention and European Union law on the structures and ideologies of the common law and engages with the politics of the rule of law. These themes are read into normative accounts of civil and criminal procedure that stress the importance of due process. The final sections of the book address the reality of civil and criminal procedure in the light of recent civil unrest in the UK and the growing privatisation of public services. The book questions whether it is possible to find a balance between the requirements of economics and the demands of justice.

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Editorial Reviews

From the Publisher

"I welcome the book as a major statement on a twenty-first century evaluation of common law as our own legal system becomes more entwined in EU law, and global legal and financial issues (most certainly the financial ones) appear so much more relevant to all than they once did… The greatest value of the book for me is that it places our picture of the common law in its contemporary context and reviews our criminal and civil procedures" – Philip Taylor, Barrister-at-Law, Richmond Green Chambers (http://www.youtube.com/watch?v=ubc7WUyfAu8)

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Product Details

  • ISBN-13: 9780415662369
  • Publisher: Taylor & Francis
  • Publication date: 6/5/2013
  • Edition description: Revised
  • Edition number: 2
  • Pages: 376
  • Product dimensions: 7.00 (w) x 10.00 (h) x 0.90 (d)

Meet the Author

Dr. Adam Gearey is a reader in law, Birkbeck College, University of London. He has been a visiting professor in the Faculty of Law at Makerere University, Uganda; the University of Pretoria, South Africa and the University of Peace, Costa Rica. He has also been a visiting fellow in the Center for Law and Society, University of California, Berkeley.

Professor Wayne Morrison LLD, PhD, LLM, LLB, (Barrister and Solicitor of the High Court of New Zealand) is Professor of Law, Queen Mary, University of London and former Director of the University of London’s International Programmes for Law

Robert Jago MPhil. (cantab.) is a Senior Lecturer and Deputy Head of the School of Law at the University of Surrey. He is also a regular visitor to HKU SPACE where he teaches Public Law.

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Table of Contents

Authors’ acknowledgements, Publisher’s acknowledgements, 1. Introduction Part I - The politics of the Common Law: perspectives, rights, processes, Institutions, 2. Introduction Part II - Procedural Fairness, the Rule of Law and Due Process, 3. ‘As a system…the common law is a thing merely imaginary’, 4. Recording law’s experience: features of the ‘case’, 5. The postcolonial, the visible and the invisible: the normal and the exceptional, 6. Institutionalizing Judicial Decision Making: Public Reason and the Doctrine of Precedent, 7. What We Talk About When We Talk About Common Law: The Practice of Precedent , 8. The Mirror and the Dialogue: The Common Law, Strasbourg and Human Rights, 9. The judicial practice of statutory interpretation, 10. The Politics of the Judiciary Revisited: rights, democracy, law, 11. Judges and Democracy, 12. The Integrity of the Court: Judgment and the Prohibition on Bias, 13. The Value of Participation: The Rights of the Defence, Equality of Arms and Access to Justice, 14. Open Justice, Closed Procedures and Torture Evidence, 15. Imagining Civil Justice, 16. Imagining Criminal Justice, 17. Conclusion

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  • Posted November 8, 2008

    more from this reviewer

    Our contemporary common law under serious academic political scrutiny

    It always amazes me that many students and lawyers assume that judges don¿t play politics because the reality is that they do¿ justified by the words ¿common law¿ and ¿policy¿!<BR/><BR/>However, the beauty of our common law system is that the judges don¿t do it overtly, so this book succeeds in answering its basic question- can a revitalized common law address a plural, post colonial future? <BR/><BR/>I came away from the authors¿ conclusion that the answer is `yes¿. It is `yes¿ because the subject has rightly been `reinvented¿ and `re-orientated¿ by them, giving what we all know as a `legal system¿ or `legal method¿ both some coherence and foundation which seemed to be lacking before the Human Rights Act 1998 appeared and changed the legal landscape. <BR/><BR/>For this reason, I welcome the book as a major statement on a twenty-first century evaluation of common law as our own legal system becomes more entwined in EU law, and global legal and financial issues (most certainly the financial ones) appear so much more relevant to all than they once did (in the summer of 2008). <BR/><BR/><BR/>Jack Straw introduced the 1998 Act, and he has now become our Lord Chancellor (in a reorganised post) whilst I write this review. Straw remains very proud of his achievement which he reminded the Conference he considers (rightly) as being one of the main lasting legacies of the Labour Party¿s current term in office from the last three Parliaments - a singular ¿big¿ achievement for the Blair and Brown governments as they have changed the face of law in Britain forever.<BR/> <BR/><BR/>Gearey, Morrison and Jago recognize that the Act has created a more pronounced judicial intervention into politics which is to be expected with its review of administrative actions in the public sector since the Thatcher years. The greatest value of the book for me is that it places our picture of the common law in its contemporary context and reviews our criminal and civil procedures although none of the authors are practising lawyers (probably a good thing, too!)<BR/><BR/><BR/>The common law will always be born out of historical experience (mainly precedent) by its very nature. So, I came away from this book reminded of some of my old political campaigns, mainly against anti EU factions, and I tried to consider the useful practical implications of this work which have opened up a new chapter for all of us: and there are many as the debate opens up. <BR/><BR/>What Gearey, Morrison and Jago have achieved here is the forerunner of a new, stronger debate on the value of the common law in a post Human Rights Act 1998 age which will be upon us shortly as we review the new Green Paper on a `Bill of Rights and Responsibilities¿. We will need to place this debate which has begun here in its new context with the EU, and globally, as the new century takes hold and some of our main legislative codes merge as the main challenge to a globilisation of legal institutions one day in the future.

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