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There is the festival held every year, and for many years there was a festival at Wembley Arena, which was broadcast on the BBC, the International Festivals of Country Music, promoted by Mervyn Conn, held at the venue between 1969 and 1991. The shows were later taken into Europe, and featured such stars as Johnny Cash, Dolly Parton, Tammy Wynette, David Allan Coe, Emmylou Harris, Boxcar Willie, Johnny Russell and Jerry Lee Lewis. A handful of country musicians had even greater success in mainstream British music than they did in the U.S., despite a certain amount of disdain from the music press. Britain's largest music festival Glastonbury has featured major US country acts in recent years, such as Kenny Rogers in 2013 and Dolly Parton in 2014.
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A niche country subgenre popular in the West Country is Scrumpy and Western, which consists mostly of novelty songs and comedy music recorded there (its name comes from scrumpy, an alcoholic beverage). A primarily local interest, the largest Scrumpy and Western hit in the UK and Ireland was "The Combine Harvester", which pioneered the genre and reached number one in both the UK and Ireland; Fred Wedlock had a number-six hit in 1981 with "The Oldest Swinger in Town". In 1975, comedian Billy Connolly topped the UK Singles Chart with "D.I.V.O.R.C.E.", a parody of the Tammy Wynette song "D-I-V-O-R-C-E".
The British Country Music Festival is an annual three-day festival held in the seaside resort of Blackpool. It uniquely promotes artists from the United Kingdom and Ireland to celebrate the impact that Celtic and British settlers to America had on the origins of country music. Past headline artists have included Amy Wadge, Ward Thomas, Tom Odell, Nathan Carter, Lisa McHugh, Catherine McGrath, Wildwood Kin, The Wandering Hearts and Henry Priestman.
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Ireland.
In Ireland, Country and Irish is a music genre that combines traditional Irish folk music with US country music. Television channel TG4 began a quest for Ireland's next country star called "Glór Tíre", translated as "Country Voice". It is now in its sixth season and is one of TG4's most-watched TV shows. Over the past ten years, country and gospel recording artist James Kilbane has reached multi-platinum success with his mix of Christian and traditional country influenced albums. James Kilbane like many other Irish artists is today working closer with Nashville. Daniel O'Donnell achieved international success with his brand of music crossing country, Irish folk and European easy listening, earning a strong following among older women both in the British Isles and in North America. A recent success in the Irish arena has been Crystal Swing.
Japan and Asia.
In Japan, country and western music first developed a following before World War II, but many Japanese became exposed to it after the war due to the Far East Network. One of the first Japanese western acts was Biji Kuroda & The Chuck Wagon Boys, other vintage artists include Jimmie Tokita and His Mountain Playboys, The Blue Rangers, Wagon Aces, and Tomi Fujiyama. While the majority of these musicians sung in English, a few of them sang in the Japanese language, such as Fujiyama and Kazuya Kosaka. The genre continues to have a dedicated following in Japan, thanks to Charlie Nagatani, Katsuoshi Suga, J.T. Kanehira, Dicky Kitano, and Manami Sekiya. Country and western venues in Japan include the former annual Country Gold which were put together by Charlie Nagatani, and the modern honky tonks at Little Texas in Tokyo and Armadillo in Nagoya.
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In India, there is an annual concert festival called "Blazing Guitars" held in Chennai brings together Anglo-Indian musicians from all over the country (including some who have emigrated to places like Australia). The year 2003 brought home-grown Indian, Bobby Cash to the forefront of the country music culture in India when he became India's first international country music artist to chart singles in Australia.
In the Philippines, country music has found their way into Cordilleran way of life, which often compares the Igorot lifestyle to that of US cowboys. The Philippines was once a US Commonwealth from 1900 to 1946, and country music began to be exported to the islands in the early 20th centurty. Baguio City has an FM station that caters to country music, DZWR 99.9 Country, which is part of the Catholic Media Network. Bombo Radyo Baguio has a segment on its Sunday slot for Igorot, Ilocano and country music. And as of recently, DWUB occasionally plays country music. Many country music musicians tour the Philippines. Original Pinoy Music has influences from country.
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Other international country music.
Tom Roland, from the Country Music Association International, explains country music's global popularity: "In this respect, at least, Country Music listeners around the globe have something in common with those in the United States. In Germany, for instance, Rohrbach identifies three general groups that gravitate to the genre: people intrigued with the US cowboy icon, middle-aged fans who seek an alternative to harder rock music and younger listeners drawn to the pop-influenced sound that underscores many current Country hits." One of the first US people to perform country music abroad was George Hamilton IV. He was the first country musician to perform in the Soviet Union; he also toured in Australia and the Middle East. He was deemed the "International Ambassador of Country Music" for his contributions to the globalization of country music. Johnny Cash, Emmylou Harris, Keith Urban, and Dwight Yoakam have also made numerous international tours. The Country Music Association undertakes various initiatives to promote country music internationally.
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Middle East.
In Iran, country music has appeared in recent years. According to "Melody Music Magazine", the pioneer of country music in Iran is the English-speaking country music band Dream Rovers, whose founder, singer and songwriter is Erfan Rezayatbakhsh (elf). The band was formed in 2007 in Tehran, and during this time they have been trying to introduce and popularize country music in Iran by releasing two studio albums and performing live at concerts, despite the difficulties that the Islamic regime in Iran makes for bands that are active in the western music field.
Musician Toby Keith performed alongside Saudi Arabian folk musician Rabeh Sager in 2017. This concert was similar to the performances of Jazz ambassadors that performed distinctively American style music internationally.
Continental Europe.
In Sweden, Rednex rose to stardom combining country music with electro-pop in the 1990s. In 1994, the group had a worldwide hit with their version of the traditional Southern tune "Cotton-Eyed Joe". Artists popularizing more traditional country music in Sweden have been Ann-Louise Hanson, Hasse Andersson, Kikki Danielsson, Elisabeth Andreassen and Jill Johnson. In Poland an international country music festival, known as Piknik Country, has been organised in Mrągowo in Masuria since 1983. The number of country music artists in France has increased. Some of the most important are Liane Edwards, Annabel, Rockie Mountains, Tahiana, and Lili West. French rock and roll singer Eddy Mitchell is also inspired by Americana and country music.
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In the Netherlands there are many artists producing popular country and Americana music, which is mostly in the English language, as well as Dutch country and country-like music in the Dutch language. The latter is mainly popular on the countrysides in the northern and eastern parts of the Netherlands and is less associated with its US brethren, although it sounds sometimes very similar. Well-known popular artists mainly performing in English are Waylon, Danny Vera, Ilse DeLange, Douwe Bob and Henk Wijngaard.
Norway had a significant country scene from the late 1970s to the late 2000s, with bands and artists including Hellbillies, Bjøro Håland, Terje Tysland, Vassendgutane, Øystein Sunde, and Rotlaus. The scene and its concerts were considered mostly a rural scene, such that most bands sang in dialects, but occasional songs made it to national fame even in the larger cities. The songs occasionally used inspirations from rock music, Norwegian folk music, and polka, but remained recognisable as country music.
Performers and shows.
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US cable television.
Several US television networks are at least partly devoted to the genre: Country Music Television (CMT) (the first channel devoted to country music) and CMT Music (both owned by Paramount Global), RFD-TV (owned by Rural Media Group), The Cowboy Channel (owned by Teton Ridge), Heartland (owned by Get After It Media), Circle Country (a joint venture of the "Grand Ole Opry" and Gray Television), The Country Network (owned by TCN Country, LLC), and Country Music Channel (the country-oriented sister channel of California Music Channel).
The Nashville Network (TNN) was launched in 1983 as a channel devoted to country music, and later added sports and outdoor lifestyle programming. It actually launched just two days after CMT. In 2000, after TNN and CMT fell under the same corporate ownership, TNN was stripped of its country format and rebranded as "The National Network", then "Spike TV" in 2003, "Spike" in 2006, and finally Paramount Network in 2018. TNN was later revived from 2012 to 2013 after Jim Owens Entertainment (the company responsible for prominent TNN hosts Crook & Chase) acquired the trademark and licensed it to Luken Communications; that channel renamed itself Heartland after Luken was embroiled in an unrelated dispute that left the company bankrupt.
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Great American Country (GAC) was launched in 1995, also as a country music-oriented channel that would later add lifestyle programming pertaining to the American Heartland and South. In Spring 2021, GAC's then-owner, Discovery, Inc. divested the network to GAC Media, which also acquired the equestrian network Ride TV. Later, in the summer of that year, GAC Media relaunched Great American Country as GAC Family, a family-oriented general entertainment network, while Ride TV was relaunched as GAC Living, a network devoted to programming pertaining to lifestyles of the American South. The GAC acronym which once stood for "Great American Country" now stands for "Great American Channels".
Canadian television.
Only one television channel was dedicated to country music in Canada: CMT owned by Corus Entertainment (90%) and Viacom (10%). However, the lifting of strict genre licensing restrictions saw the network remove the last of its music programming at the end of August 2017 for a schedule of generic off-network family sitcoms, Cancom-compliant lifestyle programming, and reality programming. In the past, the current-day Cottage Life network saw some country focus as Country Canada and later, CBC Country Canada before that network drifted into an alternate network for overflow CBC content as Bold. Stingray Music continues to maintain several country music audio-only channels on cable radio.
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In the past, country music had an extensive presence, especially on the Canadian national broadcaster, CBC Television. The show "Don Messer's Jubilee" significantly affected country music in Canada; for instance, it was the program that launched Anne Murray's career. Gordie Tapp's "Country Hoedown" and its successor, "The Tommy Hunter Show", ran for a combined 36 years on the CBC, from 1956 to 1992; in its last nine years on air, the U.S. cable network TNN carried Hunter's show.
Australian cable television.
The only network dedicated to country music in Australia was the Country Music Channel owned by Foxtel. It ceased operations in June 2020 and was replaced by CMT (owned by Network 10 parent company Paramount Networks UK & Australia).
British digital television.
One music video channel is dedicated to country music in the United Kingdom: Music & Memories, owned by Canis Media. Music & Memories, formerly known as Keep it Country and Spotlight, features a mix of country-western, pop oldies and Celtic folk music.
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Culture.
Race in modern country music.
The history of country music is complex, and the genre draws from influences from both African and European musical traditions. Despite this multicultural origin, country music is today largely associated with white Americans. This has been attributed to the efforts to segregate the music industry by record labels, beginning in the 1920s. However, because country music is a wide genre, subgenres including Indian and Hispanic country, have existed since the early 1970s. Furthermore, one of the first artists to perform at the Grand Ole Opry, a famous country music show, was DeFord Bailey, who was African-American. African-American rapper Lil Nas X, whose breakout song Old Town Road, a mixture of country and rap, has achieved widespread success. His aforementioned song topped the "Billboard" Hot Country Songs list, before controversially being removed, sparking a debate around whether the removal was racially motivated". Billboard" denied these allegations, stating that the decision was purely based on musical composition.
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The close association of conservative values and contemporary country music began as a counter-reaction to the anti-war movement of the 1960s. Prior to this, virtually all country music, up until that point referred to as "hillbilly music", lacked specific political alignment, and was instead focused on everyday problems and angst of the working class. Merle Haggard's 1969 album Okie from Muskogee brought a staunchly political, conservative take on country music, which proved popular. Republican president Richard Nixon further cemented this conservative musical association during his years in office, by frequently hosting country musicians, declaring October 1970 to be country music month, and by politically pandering to audiences where country music was popular.
Black country-music artist Mickey Guyton had been included among the nominees for the 2021 award. Guyton has expressed bewilderment that, despite substantial coverage by online platforms like Spotify and Apple Music, her music, like that of Valerie June, another black musician who embraces aspects of country in her Appalachian- and Gospel-tinged work and who has been embraced by international music audiences, is still effectively ignored by American broadcast country-music radio. Guyton's 2021 album "Remember Her Name" in part references the case of black health-care professional Breonna Taylor, who was killed in her home by police.
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In 2023, "Try That in a Small Town" by Jason Aldean became the subject of widespread controversy and media attention following the release of its music video. Tennessee state representative Justin Jones referred to the song as a "heinous vile racist song" which attempts to normalize "racist, violence, vigilantism and white nationalism". Others understood the lyrics to be supportive of lynchings and sundown towns. Aldean himself responded to the criticism by stating that the song at no point made any references to race, nor did he believe that such interpretations were accurate.
In 2024, Beyoncé published her country music-inspired eighth studio album "Cowboy Carter", a project conceptualized as a journey through a reinvention of Americana, spotlighting the overlooked contributions of Black pioneers to American musical and cultural history. The album had a cultural and commercial impact on black country artists, being praised by critics and artists belonging to the music genre. |
Cold War (1948–1953)
The Cold War (1948–1953) is the period within the Cold War from the incapacitation of the Allied Control Council in 1948 to the conclusion of the Korean War in 1953.
The list of world leaders in these years is as follows:
Europe.
Berlin Blockade.
After the Marshall Plan, the introduction of a new currency to Western Germany to replace the debased Reichsmark and massive electoral losses for communist parties in 1946, in June 1948, the Soviet Union cut off surface road access to Berlin.
On the day of the Berlin Blockade, a Soviet representative told the other occupying powers "We are warning both you and the population of Berlin that we shall apply economic and administrative sanctions that will lead to circulation in Berlin exclusively of the currency of the Soviet occupation zone."
Thereafter, street and water communications were severed, rail and barge traffic was stopped and the Soviets initially stopped supplying food to the civilian population in the non-Soviet sectors of Berlin. Because Berlin was located within the Soviet-occupied zone of Germany and the other occupying powers had previously relied on Soviet good will for access to Berlin, the only available methods of supplying the city were three limited air corridors.
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By February 1948, because of massive post-war military cuts, the entire United States army had been reduced to 552,000 men. Military forces in non-Soviet Berlin sectors totaled only 8,973 Americans, 7,606 British and 6,100 French. Soviet military forces in the Soviet sector that surrounded Berlin totaled one and a half million men. The two United States regiments in Berlin would have provided little resistance against a Soviet attack. Believing that Britain, France and the United States had little option other than to acquiesce, the Soviet Military Administration in Germany celebrated the beginning of the blockade. Thereafter, a massive aerial supply campaign of food, water and other goods was initiated by the United States, Britain, France and other countries. The Soviets derided "the futile attempts of the Americans to save face and to maintain their untenable position in Berlin." The success of the airlift eventually caused the Soviets to lift their blockade in May 1949.
However, the Soviet Army was still capable of conquering Western Europe without much difficulty. In September 1948, US military intelligence experts estimated that the Soviets had about 485,000 troops in their German occupation zone and in Poland, and some 1.785 million troops in Europe in total. At the same time, the number of US troops in 1948 was about 140,000.
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Tito–Stalin Split.
After disagreements between Yugoslavian leader Josip Broz Tito and the Soviet Union regarding Greece and the People's Republic of Albania, a Tito–Stalin Split occurred, followed by Yugoslavia being expelled from the Cominform in June 1948 and a brief failed Soviet putsch in Belgrade. The split created two separate communist forces in Europe. A vehement campaign against "Titoism" was immediately started in the Eastern Bloc, describing agents of both the West and Tito in all places engaging in subversive activity. This resulted in the persecution of many major party cadres, including those in East Germany.
was split up and dissolved in 1954 and 1975, also because of the détente between the West and Tito.
NATO.
The United States joined Britain, France, Canada, Denmark, Portugal, Norway, Belgium, Iceland, Luxembourg, Italy, and the Netherlands in 1949 to form the North Atlantic Treaty Organization (NATO), the United States' first "entangling" European alliance in 170 years. West Germany, Spain, Greece, and Turkey would later join this alliance. The Eastern leaders retaliated against these steps by integrating the economies of their nations in Comecon, their version of the Marshall Plan; exploding the first Soviet atomic device in 1949; signing an alliance with People's Republic of China in February 1950; and forming the Warsaw Pact, Eastern Europe's counterpart to NATO, in 1955. The Soviet Union, Albania, Czechoslovakia, Hungary, East Germany, Bulgaria, Romania, and Poland founded this military alliance.
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NSC 68.
U.S. officials quickly moved to escalate and expand "containment." In a secret 1950 document, NSC 68, they proposed to strengthen their alliance systems, quadruple defense spending, and embark on an elaborate propaganda campaign to convince the U.S. public to fight this costly cold war. Truman ordered the development of a hydrogen bomb. In early 1950, the U.S. took its first efforts to oppose communist forces in Vietnam; planned to form a West German army, and prepared proposals for a peace treaty with Japan that would guarantee long-term U.S. military bases there.
Outside Europe.
The Cold War took place worldwide, but it had a partially different timing and trajectory outside Europe.
In Africa, decolonization took place first; it was largely accomplished in the 1950s. The main rivals then sought bases of support in the new national political alignments. In Latin America, the first major confrontation took place in Guatemala in 1954. When the new Castro government of Cuba turned to Soviets support in 1960, Cuba became the center of the anti-American Cold War forces, supported by the Soviet Union.
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Chinese Civil War.
As Japan's empire collapsed in 1945 the civil war resumed in China between the Kuomintang (KMT) led by Generalissimo Chiang Kai-shek and the Chinese Communist Party led by Mao Zedong. The USSR had signed a Treaty of Friendship with the Kuomintang in 1945 and disavowed support for the Chinese Communists. The outcome was closely fought, with the Communists finally prevailing with superior military tactics. Although the Nationalists had an advantage in numbers of men and weapons, initially controlled a much larger territory and population than their adversaries, and enjoyed considerable international support, they were exhausted by the long war with Japan and the attendant internal responsibilities. In addition, the Chinese Communists were able to fill the political vacuum left in Manchuria after Soviet forces withdrew from the area and thus gained China's prime industrial base. The Chinese Communists were able to fight their way from the north and northeast, and virtually all of mainland China was taken by the end of 1949. On October 1, 1949, Mao Zedong proclaimed the People's Republic of China (PRC). Chiang Kai-shek and 600,000 Nationalist troops and 2 million refugees, predominantly from the government and business community, fled from the mainland to the island of Taiwan. In December 1949, Chiang proclaimed Taipei the temporary capital of the Republic of China (ROC) and continued to assert his government as the sole legitimate authority in China.
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The continued hostility between the Communists on the mainland and the Nationalists on Taiwan continued throughout the Cold War. Though the United States refused to aide Chiang Kai-shek in his hope to "recover the mainland," it continued supporting the Republic of China with military supplies and expertise to prevent Taiwan from falling into PRC hands. Through the support of the Western bloc (most Western countries continued to recognize the ROC as the sole legitimate government of China), the Republic of China on Taiwan retained China's seat in the United Nations until 1971.
Madiun Affair.
Madiun Affair took place on September 18, 1948, in the city of Madiun, East Java. This rebellion was carried out by the Front Demokrasi Rakyat (FDR, People's Democratic Front) which united all socialist and communist groups in Indonesia. This rebellion ended 3 months later after its leaders were arrested and executed by the TNI.
This revolt began with the fall of the Amir Syarifuddin Cabinet due to the signing of the Renville Agreement which benefited the Dutch and was eventually replaced by the Hatta Cabinet which did not belong to the left wing. This led Amir Syarifuddin to declare opposition to the Hatta Cabinet government and to declare the formation of the People's Democratic Front.
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Before it, In the PKI Politburo session on August 13–14, 1948, Musso, an Indonesian communist figure, introduced a political concept called "Jalan Baru". He also wanted a single Marxism party called the PKI (Communist Party of Indonesia) consisting of illegal communists, the Labour Party of Indonesia, and Partai Sosialis(Socialist Party).
On September 18, 1948, the FDR declared the formation of the Republic of Soviet-Indonesia. In addition, the communists also carried out a rebellion in the Pati Residency and the kidnapping of groups who were considered to be against communists. Even this rebellion resulted in the murder of the Governor of East Java at the time, Raden Mas Tumenggung Ario Soerjo.
The crackdown operation against this movement began. This operation was led by A.H. Nasution. The Indonesian government also applied Commander General Sudirman to the Military Operations Movement I where General Sudirman ordered Colonel Gatot Soebroto and Colonel Sungkono to mobilize the TNI and police to crush the rebellion.
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On September 30, 1948, Madiun was captured again by the Republic of Indonesia. Musso was shot dead on his escape in Sumoroto and Amir Syarifuddin was executed after being captured in Central Java. In early December 1948, the Madiun Affair crackdown was declared complete.
Korean War.
In early 1950, the United States made its first commitment to form a peace treaty with Japan that would guarantee long-term U.S. military bases. Some observers (including George Kennan) believed that the Japanese treaty led Stalin to approve a plan to invade U.S.-supported South Korea on June 25, 1950. Korea had been divided at the end of World War II along the 38th parallel into Soviet and U.S. occupation zones, in which a communist government was installed in the North by the Soviets, and an elected government in the South came to power after UN-supervised elections in 1948.
In June 1950, Kim Il Sung's North Korean People's Army invaded South Korea. Fearing that communist Korea under a Kim Il Sung dictatorship could threaten Japan and foster other communist movements in Asia, Truman committed U.S. forces and obtained help from the United Nations to counter the North Korean invasion. The Soviets boycotted UN Security Council meetings while protesting the council's failure to seat the People's Republic of China and, thus, did not veto the council's approval of UN action to oppose the North Korean invasion. A joint UN force of personnel from South Korea, the United States, Britain, Turkey, Canada, Australia, France, the Philippines, the Netherlands, Belgium, New Zealand and other countries joined to stop the invasion. After a Chinese invasion to assist the North Koreans, fighting stabilized along the 38th parallel, which had separated the Koreas. Truman faced a hostile China, a Sino-Soviet partnership, and a defense budget that had quadrupled in eighteen months.
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The Korean Armistice Agreement was signed in July 1953 after the death of Stalin, who had been insisting that the North Koreans continue fighting. In North Korea, Kim Il Sung created a highly centralized and brutal dictatorship, according himself unlimited power and generating a formidable cult of personality.
Hydrogen bomb.
A hydrogen bomb—which produced nuclear fusion instead of nuclear fission—was first tested by the United States in November 1952 and the Soviet Union in August 1953. Such bombs were first deployed in the 1960s.
Culture and media.
Fear of a nuclear war spurred the production of public safety films by the United States federal government's Civil Defense branch that demonstrated ways on protecting oneself from a Soviet nuclear attack. The 1951 children's film "Duck and Cover" is a prime example.
George Orwell's classic dystopia Nineteen Eighty-Four was published in 1949. The novel explores life in an imagined future world where a totalitarian government has achieved terrifying levels of power and control. With Nineteen Eighty-Four, Orwell taps into the anti-communist fears that would continue to haunt so many in the West for decades to come. In a Cold War setting his descriptions could hardly fail to evoke comparison to Soviet communism and the seeming willingness of Stalin and his successors to control those within the Soviet bloc by whatever means necessary. Orwell's famous allegory of totalitarian rule, Animal Farm, published in 1945, provoked similar anti-communist sentiments. |
Crony capitalism
Crony capitalism, sometimes also called simply cronyism, is a pejorative term used in political discourse to describe a situation in which businesses profit from a close relationship with state power, either through an anti-competitive regulatory environment, direct government largesse, or corruption. Examples given for crony capitalism include obtainment of permits, government grants, tax breaks, or other undue influence from businesses over the state's deployment of public goods, for example, mining concessions for primary commodities or contracts for public works. In other words, it is used to describe a situation where businesses thrive not as a result of free enterprise, but rather collusion between a business class and the political class.
Wealth is then accumulated not merely by making a profit in the market, but through profiteering by rent seeking using this monopoly or oligopoly. Entrepreneurship and innovative practices that seek to reward risk are stifled since the value-added is little by crony businesses, as hardly anything of significant value is created by them, with transactions taking the form of trading. Crony capitalism spills over into the government, the politics, and the media, when this nexus distorts the economy and affects society to an extent it corrupts public-serving economic, political, and social ideals.
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Historical usage.
The first extensive use of the term "crony capitalism" came about in the 1980s, to characterize the Philippine economy under the dictatorship of Ferdinand Marcos. Early uses of this term to describe the economic practices of the Marcos regime included that of Ricardo Manapat, who introduced it in his 1979 pamphlet "Some are Smarter than Others", which was later published in 1991; former "Time" magazine business editor George M. Taber, who used the term in a "Time" magazine article in 1980, and activist (and later Finance Minister) Jaime Ongpin, who used the term extensively in his writing and is sometimes credited for having coined it.
The term crony capitalism made a significant impact in the public as an explanation of the Asian financial crisis.
It is also used to describe governmental decisions favoring cronies of governmental officials.
The term is used largely interchangeably with the related term corporate welfare, although the latter is by definition specific to corporations.
In practice.
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Crony capitalism exists along a continuum. In its lightest form, crony capitalism consists of collusion among market players which is officially tolerated or encouraged by the government. While perhaps lightly competing against each other, they will present a unified front (sometimes called a trade association or industry trade group) to the government in requesting subsidies aid or regulation. For instance, newcomers to a market then need to surmount significant barriers to entry in seeking loans, acquiring shelf space, or receiving official sanction. Some such systems are very formalized, such as sports leagues and the Medallion System of the taxicabs of New York City, but often the process is more subtle, such as expanding training and certification exams to make it more expensive for new entrants to enter a market and thereby limiting potential competition. In technological fields, there may evolve a system whereby new entrants may be accused of infringing on patents that the established competitors never assert against each other. In spite of this, some competitors may succeed when the legal barriers are light. The term crony capitalism is generally used when these practices either come to dominate the economy as a whole, or come to dominate the most valuable industries in an economy. Intentionally ambiguous laws and regulations are common in such systems. Taken strictly, such laws would greatly impede practically all business activity, but in practice, they are only erratically enforced. The specter of having such laws suddenly brought down upon a business provides an incentive to stay in the good graces of political officials. Troublesome rivals who have overstepped their bounds can have these laws suddenly enforced against them, leading to fines or even jail time. Even in high-income democracies with well-established legal systems and freedom of the press in place, a larger state is generally associated with increased political corruption.
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The term crony capitalism was initially applied to states involved in the 1997 Asian financial crisis such as Indonesia, South Korea and Thailand. In these cases, the term was used to point out how family members of the ruling leaders became extremely wealthy with no non-political justification. Southeast Asian nations, such as Hong Kong and Malaysia, still score very poorly in rankings measuring this. It was also used in this context as part of a broader liberal critique of economic dirigisme. The term has also been applied to the system of oligarchs in Russia. Other states to which the term has been applied include India, in particular the system after the 1990s liberalization, whereby land and other resources were given at throwaway prices in the name of public-private partnerships, the more recent coal-gate scam and cheap allocation of land and resources to Adani SEZ under the Congress and BJP governments. Similar references to crony capitalism have been made to other countries such as Argentina and Greece. Wu Jinglian, one of China's leading economists and a longtime advocate of its transition to free markets, says that it faces two starkly contrasting futures, namely a market economy under the rule of law or crony capitalism. A dozen years later, prominent political scientist Pei Minxin concluded that the latter course had become deeply embedded in China. The anti-corruption campaign under Xi Jinping (2012–) has seen more than 100,000 high- and low-ranking Chinese officials indicted and jailed.
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Many prosperous nations have also had varying amounts of cronyism throughout their history, including the United Kingdom, especially in the 1600s and 1700s, the United States and Japan.
Crony capitalism index.
"The Economist" benchmarks countries based on a crony-capitalism index calculated via how much economic activity occurs in industries prone to cronyism. Its 2014 Crony Capitalism Index ranking listed Hong Kong, Russia and Malaysia in the top three spots.
In finance.
Crony capitalism in finance was found in the Second Bank of the United States. It was a private company, but its largest stockholder was the federal government which owned 20%. It was an early bank regulator and grew to be one of the most powerful organizations in the country due largely to being the depository of the government's revenue.
The Gramm–Leach–Bliley Act in 1999 completely removed Glass–Steagall’s separation between commercial banks and investment banks. After this repeal, commercial banks, investment banks and insurance companies combined their lobbying efforts. Critics claim this was instrumental in the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
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In sections of an economy.
More direct government involvement in a specific sector can also lead to specific areas of crony capitalism, even if the economy as a whole may be competitive. This is most common in natural resource sectors through the granting of mining or drilling concessions, but it is also possible through a process known as regulatory capture where the government agencies in charge of regulating an industry come to be controlled by that industry. Governments will often establish in good faith government agencies to regulate an industry. However, the members of an industry have a very strong interest in the actions of that regulatory body while the rest of the citizenry are only lightly affected. As a result, it is not uncommon for current industry players to gain control of the watchdog and use it against competitors. This typically takes the form of making it very expensive for a new entrant to enter the market. An 1824 landmark United States Supreme Court ruling overturned a New York State-granted monopoly ("a veritable model of state munificence" facilitated by Robert R. Livingston, one of the Founding Fathers) for the then-revolutionary technology of steamboats. Leveraging the Supreme Court's establishment of Congressional supremacy over commerce, the Interstate Commerce Commission was established in 1887 with the intent of regulating railroad robber barons. President Grover Cleveland appointed Thomas M. Cooley, a railroad ally, as its first chairman and a permit system was used to deny access to new entrants and legalize price fixing.
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The defense industry in the United States is often described as an example of crony capitalism in an industry. Connections with the Pentagon and lobbyists in Washington are described by critics as more important than actual competition due to the political and secretive nature of defense contracts. In the Airbus-Boeing WTO dispute, Airbus (which receives outright subsidies from European governments) has stated Boeing receives similar subsidies which are hidden as inefficient defense contracts. Other American defense companies were put under scrutiny for no-bid contracts for the Iraq War and Hurricane Katrina related contracts purportedly due to having cronies in the Bush administration.
Gerald P. O'Driscoll, former vice president at the Federal Reserve Bank of Dallas, stated that Fannie Mae and Freddie Mac became examples of crony capitalism as government backing let Fannie and Freddie dominate mortgage underwriting, saying: "The politicians created the mortgage giants, which then returned some of the profits to the pols—sometimes directly, as campaign funds; sometimes as "contributions" to favored constituents".
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In developing economies.
In its worst form, crony capitalism can devolve into simple corruption where any pretense of a free market is dispensed with, bribes to government officials are considered "de rigueur" and tax evasion is common. This is seen in many parts of Africa and is sometimes called plutocracy (rule by wealth) or kleptocracy (rule by theft). Kenyan economist David Ndii has repeatedly brought to light how this system has manifested over time, occasioned by the reign of Uhuru Kenyatta as president.
Corrupt governments may favor one set of business owners who have close ties to the government over others. This may also be done with, religious, or ethnic favoritism. For instance, Alawites in Syria have a disproportionate share of power in the government and business there (President Assad himself is an Alawite). This can be explained by considering personal relationships as a social network. As government and business leaders try to accomplish various things, they naturally turn to other powerful people for support in their endeavors. These people form hubs in the network. In a developing country, those hubs may be very few, thus concentrating economic and political power in a small interlocking group.
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Normally, this will be untenable to maintain in business as new entrants will affect the market. However, if business and government are entwined, then the government can maintain the small-hub network.
Raymond Vernon, a specialist in economics and international affairs, wrote that the Industrial Revolution began in Great Britain because they were the first to successfully limit the power of veto groups (typically cronies of those with power in government) to block innovations, writing: "Unlike most other national environments, the British environment of the early 19th century contained relatively few threats to those who improved and applied existing inventions, whether from business competitors, labor, or the government itself. In other European countries, by contrast, the merchant guilds ... were a pervasive source of veto for many centuries. This power was typically bestowed upon them by government." Vernon further stated that "a steam-powered horseless carriage produced in France in 1769 was officially suppressed." James Watt began experimenting with steam in 1763, got a patent in 1769 and began commercial production in 1775.
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Raghuram Rajan, former governor of the Reserve Bank of India, has said: "One of the greatest dangers to the growth of developing countries is the middle income trap, where crony capitalism creates oligarchies that slow down growth. If the debate during the elections is any pointer, this is a very real concern of the public in India today". Tavleen Singh, columnist for "The Indian Express", has disagreed. According to Singh, India's corporate success is not a product of crony capitalism, but because India is no longer under the influence of crony socialism.
Political viewpoints.
While the problem is generally accepted across the political spectrum, ideology shades the view of the problem's causes and therefore its solutions. Political views mostly fall into two camps which might be called the socialist and capitalist critique. The socialist position is that crony capitalism is the inevitable result of any strictly capitalist system and thus broadly democratic government must regulate economic, or wealthy, interests to restrict monopoly. The capitalist position is that natural monopolies are rare, therefore governmental regulations generally abet established wealthy interests by restricting competition.
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Socialist critique.
Critics of crony capitalism including socialists and anti-capitalists often assert that so-called crony capitalism is simply the inevitable result of any strictly capitalist system. Jane Jacobs described it as a natural consequence of collusion between those managing power and trade while Noam Chomsky has argued that the word crony is superfluous when describing capitalism. Since businesses make money and money leads to political power, business will inevitably use their power to influence governments. Much of the impetus behind campaign finance reform in the United States and in other countries is an attempt to prevent economic power from being used to take political power.
Ravi Batra argues that "all official economic measures adopted since 1981 ... have devastated the middle class" and that the Occupy Wall Street movement should push for their repeal and thus end the influence of the super wealthy in the political process which he considers a manifestation of crony capitalism.
Socialist economists, such as Robin Hahnel, have criticized the term as an ideologically motivated attempt to cast what is in their view the fundamental problems of capitalism as avoidable irregularities. Socialist economists dismiss the term as an apologetic for failures of neoliberal policy and more fundamentally their perception of the weaknesses of market allocation.
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Capitalist critique.
Supporters of capitalism also generally oppose crony capitalism. Further, supporters such as classical liberals, neoliberals and right-libertarians consider it an aberration brought on by governmental favors incompatible with the free market.. In the capitalist view, cronyism is the result of an excess of interference in the market which inevitably will result in a toxic combination of corporations and government officials running sectors of the economy. For instance, the "Financial Times" observed that, in Vietnam during the 2010s, the primary beneficiaries of cronyism were Communist party officials, noting also the "common practice of employing only party members and their family members and associates to government jobs or to jobs in state-owned enterprises."
Conservative commentator Ben Shapiro prefers to equate this problem with terms such as corporatocracy or corporatism, considered "a modern form of mercantilism", to emphasize that the only way to run a profitable business in such a system is to have help from corrupt government officials. Likewise, Hernando de Soto said that mercantilism "is also known as 'crony' or 'noninclusive' capitalism".
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Even if the initial regulation was well-intentioned (to curb actual abuses) and even if the initial lobbying by corporations was well-intentioned (to reduce illogical regulations), the mixture of business and government stifles competition, a collusive result called regulatory capture. Burton W. Folsom Jr. distinguishes those who engage in crony capitalism—designated by him political entrepreneurs—from those who compete in the marketplace without special aid from the government, whom he calls market entrepreneurs. While market entrepreneurs such as James J. Hill, Cornelius Vanderbilt and John D. Rockefeller succeeded by producing a quality product at a competitive price, political entrepreneurs such as Edward Collins in steamships and the leaders of the Union Pacific Railroad in railroads were men who used the power of government to succeed. They tried to gain subsidies or in some way use the government to stop competitors. |
Lists of universities and colleges
This is a list of lists of universities and colleges. |
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these principles are written down into a single document or set of legal documents, those documents may be said to embody a "written constitution"; if they are encompassed in a single comprehensive document, it is said to embody a "codified constitution". The Constitution of the United Kingdom is a notable example of an "uncodified constitution"; it is instead written in numerous fundamental acts of a legislature, court cases, and treaties.
Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. A treaty that establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made, and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights. Changes to constitutions frequently require consensus or supermajority.
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The Constitution of India is the longest written constitution of any country in the world, with 146,385 words in its English-language version, while the Constitution of Monaco is the shortest written constitution with 3,814 words. The Constitution of San Marino might be the world's oldest active written constitution, since some of its core documents have been in operation since 1600, while the Constitution of the United States is the oldest active codified constitution. The historical life expectancy of a constitution since 1789 is approximately 19 years.
Etymology.
The term "constitution" comes through French from the Latin word , used for regulations and orders, such as the imperial enactments ("constitutiones principis": edicta, mandata, decreta, rescripta). Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an "apostolic constitution".
William Blackstone used the term for significant and egregious violations of public trust, of a nature and extent that the transgression would justify a revolutionary response. The term as used by Blackstone was not for a legal text, nor did he intend to include the later American concept of judicial review: "for that were to set the judicial power above that of the legislature, which would be subversive of all government".
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General features.
Generally, every modern written constitution confers specific powers on an organization or institutional entity, established upon the primary condition that it abides by the constitution's limitations. According to Scott Gordon, a political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority".
Activities of officials within an organization or polity that fall within the constitutional or statutory authority of those officials are termed "within power" (or, in Latin, "intra vires"); if they do not, they are termed "beyond power" (or, in Latin, "ultra vires"). For example, a students' union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities, these activities are considered to be "ultra vires" of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of sovereign states would be a provincial parliament in a federal state trying to legislate in an area that the constitution allocates exclusively to the federal parliament, such as ratifying a treaty. Action that appears to be beyond power may be judicially reviewed and, if found to be beyond power, must cease. Legislation that is found to be beyond power will be "invalid" and of no force; this applies to primary legislation, requiring constitutional authorization, and secondary legislation, ordinarily requiring statutory authorization. In this context, "within power", "intra vires", "authorized" and "valid" have the same meaning; as do "beyond power", "ultra vires", "not authorized" and "invalid".
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In most but not all modern states the constitution has supremacy over ordinary statutory law (see Uncodified constitution below); in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is "null and void", and the nullification is "ab initio", that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but that the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only that application may be ruled unconstitutional. Historically, the remedies for such violations have been petitions for common law writs, such as "quo warranto".
Scholars debate whether a constitution must necessarily be autochthonous, resulting from the nation's "spirit". Hegel said "A constitution...is the work of centuries; it is the idea, the consciousness of rationality so far as that consciousness is developed in a particular nation."
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History and development.
Since 1789, along with the Constitution of the United States of America (U.S. Constitution), which is the oldest and shortest written constitution still in force, close to 800 constitutions have been adopted and subsequently amended around the world by independent states.
In the late 18th century, Thomas Jefferson predicted that a period of 20 years would be the optimal time for any constitution to be still in force, since "the earth belongs to the living, and not to the dead". Indeed, according to recent studies, the average life of any newly written constitution is around 19 years. However, a great number of constitutions do not last more than 10 years, and around 10% do not last more than one year, as was the case of the French Constitution of 1791. By contrast, some constitutions, notably that of the United States, have remained in force for several centuries, often without major revision for long periods.
The most common reasons for these frequent changes are the political desire for an immediate outcome and the short time devoted to the constitutional drafting process. A study in 2009 showed that the average time taken to draft a constitution is around 16 months, however there were also some extreme cases registered. For example, the Myanmar 2008 Constitution was being secretly drafted for more than 17 years, whereas at the other extreme, during the drafting of Japan's 1946 Constitution, the bureaucrats drafted everything in no more than a week. Japan has the oldest unamended constitution in the world. The record for the shortest overall process of drafting, adoption, and ratification of a national constitution belongs to the Romania's 1938 constitution, which installed a royal dictatorship in less than a month. Studies showed that typically extreme cases where the constitution-making process either takes too long or is extremely short were non-democracies.
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In principle, constitutional rights are not a specific characteristic of democratic countries. Autocratic states have constitutions, such as that of North Korea, which officially grants every citizen, among other things, the freedom of expression. However, the extent to which governments abide by their own constitutional provisions varies. In North Korea, for example, the Ten Principles for the Establishment of a Monolithic Ideological System are said to have eclipsed the constitution in importance as a frame of government in practice. Developing a legal and political tradition of strict adherence to constitutional provisions is considered foundational to the rule of law.
Pre-modern constitutions.
Ancient.
Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash . Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however, it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.
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After that, many governments ruled by special codes of written laws. The oldest such document still known to exist seems to be the Code of Ur-Nammu of Ur (c. 2050 BC). Some of the better-known ancient law codes are the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code, and Mosaic law.
In 621 BC, a scribe named Draco codified the oral laws of the city-state of Athens; this code prescribed the death penalty for many offenses (thus creating the modern term "draconian" for very strict rules). In 594 BC, Solon, the ruler of Athens, created the new "Solonian Constitution". It eased the burden of the workers and determined that membership of the ruling class was to be based on wealth (plutocracy), rather than on birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
Aristotle (c. 350 BC) was the first to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works "Constitution of Athens", "Politics", and "Nicomachean Ethics", he explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.
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The Romans initially codified their constitution in 450 BC as the "Twelve Tables". They operated under a series of laws that were added from time to time, but Roman law was not reorganized into a single code until the "Codex Theodosianus" (438 AD); later, in the Eastern Empire, the "Codex repetitæ prælectionis" (534) was highly influential throughout Europe. This was followed in the east by the "Ecloga" of Leo III the Isaurian (740) and the "Basilica" of Basil I (878).
The "Edicts of Ashoka" established constitutional principles for the 3rd century BC Maurya king's rule in India. For constitutional principles almost lost to antiquity, see the code of Manu.
Early Middle Ages.
Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be written was the Visigothic "Code of Euric" (471 AD). This was followed by the "Lex Burgundionum", applying separate codes for Germans and for Romans; the "Pactus Alamannorum"; and the Salic Law of the Franks, all written soon after 500. In 506, the "Breviarum" or "Lex Romana" of Alaric II, king of the Visigoths, adopted and consolidated the "Codex Theodosianus" together with assorted earlier Roman laws. Systems that appeared somewhat later include the "Edictum Rothari" of the Lombards (643), the "Lex Visigothorum" (654), the "Lex Alamannorum" (730), and the "Lex Frisionum" (c. 785). These continental codes were all composed in Latin, while Anglo-Saxon was used for those of England, beginning with the Code of Æthelberht of Kent (602). Around 893, Alfred the Great combined this and two other earlier Saxon codes, with various Mosaic and Christian precepts, to produce the "Doom book" code of laws for England.
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Japan's "Seventeen-article constitution" written in 604, reportedly by Prince Shōtoku, is an early example of a constitution in Asian political history. Influenced by Buddhist teachings, the document focuses more on social morality than on institutions of government, and remains a notable early attempt at a government constitution.
The Constitution of Medina (, Ṣaḥīfat al-Madīna), also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad after his flight (hijra) to Yathrib where he became political leader. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans. The document was drawn up with the explicit concern of bringing to an end the bitter intertribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one community – the Ummah. The precise dating of the Constitution of Medina remains debated, but generally, scholars agree it was written shortly after the Hijra (622).
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In Wales, the Cyfraith Hywel (Law of Hywel) was codified by Hywel Dda c. 942–950. It served as the main law code in Wales until it was superseded by the Laws in Wales Acts 1535 and 1542.
Middle Ages after 1000.
The "Pravda Yaroslava", originally combined by Yaroslav the Wise the Grand Prince of Kiev, was granted to Great Novgorod around 1017, and in 1054 was incorporated into the "Russkaya Pravda"; it became the law for all of Kievan Rus'. It survived only in later editions of the 15th century.
In England, Henry I's proclamation of the Charter of Liberties in 1100 bound the king for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced King John to sign Magna Carta in 1215. The most important single article of Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim – there must be due process of law first. This article, Article 39, of Magna Carta read:
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This provision became the cornerstone of English liberty after that point. The social contract in the original case was between the king and the nobility but was gradually extended to all of the people. It led to the system of Constitutional Monarchy, with further reforms shifting the balance of power from the monarchy and nobility to the House of Commons.
The Nomocanon of Saint Sava () was the first Serbian constitution from 1219. St. Sava's Nomocanon was the compilation of civil law, based on Roman Law, and canon law, based on Ecumenical Councils. Its basic purpose was to organize the functioning of the young Serbian kingdom and the Serbian church. Saint Sava began the work on the Serbian Nomocanon in 1208 while he was at Mount Athos, using "The Nomocanon in Fourteen Titles", "Synopsis of Stefan the Efesian", "Nomocanon of John Scholasticus", and Ecumenical Council documents, which he modified with the canonical commentaries of Aristinos and Joannes Zonaras, local church meetings, rules of the Holy Fathers, the law of Moses, the translation of Prohiron, and the Byzantine emperors' Novellae (most were taken from Justinian's Novellae). The Nomocanon was a completely new compilation of civil and canonical regulations, taken from Byzantine sources but completed and reformed by St. Sava to function properly in Serbia. Besides decrees that organized the life of the church, there are various norms regarding civil life; most of these were taken from Prohiron. Legal transplants of Roman-Byzantine law became the basis of the Serbian medieval law. The essence of Zakonopravilo was based on Corpus Iuris Civilis.
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Stefan Dušan, emperor of Serbs and Greeks, enacted Dušan's Code () in Serbia, in two state congresses: in 1349 in Skopje and in 1354 in Serres. It regulated all social spheres, so it was the second Serbian constitution, after St. Sava's Nomocanon (Zakonopravilo). The Code was based on Roman-Byzantine law. The legal transplanting within articles 171 and 172 of Dušan's Code, which regulated juridical independence, is notable. They were taken from the Byzantine code Basilika (book VII, 1, 16–17).
In 1222, Hungarian King Andrew II issued the Golden Bull of 1222.
Between 1220 and 1230, a Saxon administrator, Eike von Repgow, composed the "Sachsenspiegel", which became the supreme law used in parts of Germany as late as 1900.
Around 1240, the Coptic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, wrote the "Fetha Negest" in Arabic. 'Ibn al-Assal took his laws partly from apostolic writings and Mosaic law and partly from the former Byzantine codes. There are a few historical records claiming that this law code was translated into Ge'ez and entered Ethiopia around 1450 in the reign of Zara Yaqob. Even so, its first recorded use in the function of a constitution (supreme law of the land) is with Sarsa Dengel beginning in 1563. The "Fetha Negest" remained the supreme law in Ethiopia until 1931, when a modern-style Constitution was first granted by Emperor Haile Selassie I.
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In the Principality of Catalonia, the Catalan constitutions were promulgated by the Court from 1283 (or even two centuries before, if Usatges of Barcelona is considered part of the compilation of Constitutions) until 1716, when Philip V of Spain gave the Nueva Planta decrees, finishing with the historical laws of Catalonia. These Constitutions were usually made formally as a royal initiative, but required for its approval or repeal the favorable vote of the Catalan Courts, the medieval antecedent of the modern Parliaments. These laws, like other modern constitutions, had preeminence over other laws, and they could not be contradicted by mere decrees or edicts of the king.
The "Kouroukan Founga" was a 13th-century charter of the Mali Empire in West Africa, reconstructed from oral tradition in 1988 by Siriman Kouyaté. It included the "right to life and to the preservation of physical integrity" and significant protections for women.
The Golden Bull of 1356 was a decree issued by a "Reichstag" in Nuremberg headed by Emperor Charles IV that fixed, for a period of more than four hundred years, an important aspect of the constitutional structure of the Holy Roman Empire.
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In China, the Hongwu Emperor created and refined a document he called "Ancestral Injunctions" (first published in 1375, revised twice more before he died in 1398). These rules served as a constitution for the Ming dynasty for the next 250 years.
The oldest written document still governing a sovereign nation today is that of San Marino. The "Leges Statutae Republicae Sancti Marini" was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers, and the powers assigned to them. The remaining books cover criminal and civil law and judicial procedures and remedies. Written in 1600, the document was based upon the "Statuti Comunali" (Town Statute) of 1300, itself influenced by the "Codex Justinianus", and it remains in force today.
In 1392 the "Carta de Logu" was legal code of the Giudicato of Arborea promulgated by the "giudicessa" Eleanor. It was in force in Sardinia until it was superseded by the code of Charles Felix in April 1827. The Carta was a work of great importance in Sardinian history. It was an organic, coherent, and systematic work of legislation encompassing the civil and penal law.
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The "Gayanashagowa", the oral constitution of the Haudenosaunee nation also known as the Great Law of Peace, established a system of governance as far back as 1190 AD (though perhaps more recently at 1451) in which the Sachems, or tribal chiefs, of the Iroquois League's member nations made decisions based on universal consensus of all chiefs following discussions that were initiated by a single nation. The position of Sachem descends through families and are allocated by the senior female clan heads, though, prior to the filling of the position, candidacy is ultimately democratically decided by the community itself.
Modern constitutions.
In 1634 the Kingdom of Sweden adopted the 1634 Instrument of Government, drawn up under the Lord High Chancellor of Sweden Axel Oxenstierna after the death of king Gustavus Adolphus. This can be seen as the first written constitution adopted by a modern state.
English civil war era.
On 4 January 1649, the Rump Parliament declared "that the people are, under God, the original of all just power; that the Commons of England, being chosen by and representing the people, have the supreme power in this nation".
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The English Protectorate set up by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution adopted by a modern state; it was called the Instrument of Government. This formed the basis of government for the short-lived republic from 1653 to 1657 by providing a legal rationale for the increasing power of Cromwell after Parliament consistently failed to govern effectively. Most of the concepts and ideas embedded into modern constitutional theory, especially bicameralism, separation of powers, the written constitution, and judicial review, can be traced back to the experiments of that period. Drafted by Major-General John Lambert in 1653, the "Instrument of Government" included elements incorporated from an earlier document "Heads of Proposals", which had been agreed to by the Army Council in 1647, as a set of propositions intended to be a basis for a constitutional settlement after King Charles I was defeated in the First English Civil War. Charles had rejected the propositions, but before the start of the Second Civil War, the Grandees of the New Model Army had presented the "Heads of Proposals" as their alternative to the more radical Agreement of the People presented by the Agitators and their civilian supporters at the Putney Debates. The "Instrument of Government" was adopted by Parliament on 15 December 1653, and Oliver Cromwell was installed as Lord Protector on the following day. The constitution set up a state council consisting of 21 members while executive authority was vested in the office of "Lord Protector of the Commonwealth." This position was designated as a non-hereditary life appointment. The "Instrument" also required the calling of triennial Parliaments, with each sitting for at least five months.
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The "Instrument of Government" was replaced in May 1657 by England's second, and last, codified constitution, the Humble Petition and Advice, proposed by Sir Christopher Packe. The Petition offered hereditary monarchy to Oliver Cromwell, asserted Parliament's control over issuing new taxation, provided an independent council to advise the king and safeguarded "Triennial" meetings of Parliament. A modified version of the Humble Petition with the clause on kingship removed was ratified on 25 May. This finally met its demise in conjunction with the death of Cromwell and the Restoration of the monarchy.
British colonies in North America.
In 1639, the Colony of Connecticut adopted the Fundamental Orders, which was the first North American constitution. It is the basis for every new Connecticut constitution since, and is also the reason for Connecticut's nickname, "the Constitution State".
All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in 1776 and 1777, during the American Revolution (and before the later Articles of Confederation and United States Constitution), with the exceptions of Massachusetts, Connecticut, and Rhode Island. The Commonwealth of Massachusetts adopted its Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.
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Democratic constitutions: 18th century.
What is sometimes called the "enlightened constitution" model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e., support democracy).
"Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host" was written in 1710 by Pylyp Orlyk, "hetman" of the Zaporozhian Host. It was written to establish a free Zaporozhian-Ukrainian Republic, with the support of Charles XII of Sweden. It is notable in that it established a democratic standard for the separation of powers in government between the legislative, executive, and judiciary branches, well before the publication of Montesquieu's "Spirit of the Laws". This Constitution also limited the executive authority of the "hetman", and established a democratically elected Cossack parliament called the General Council. However, Orlyk's project for an independent Ukrainian State never materialized, and his constitution, written in exile, never went into effect.
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Corsican Constitutions of 1755 and 1794 were inspired by Jean-Jacques Rousseau. The latter introduced universal suffrage for property owners.
The Swedish constitution of 1772 was enacted under King Gustavus III and was inspired by the separation of powers by Montesquieu. The king also cherished other enlightenment ideas (as an enlighted despot) and repealed torture, liberated agricultural trade, diminished the use of the death penalty and instituted a form of religious freedom. The constitution was commended by Voltaire.
The United States Constitution, ratified 21 June 1788, was influenced by the writings of Polybius, Locke, Montesquieu, and others. The document became a benchmark for republicanism and codified constitutions written thereafter.
The Polish–Lithuanian Commonwealth Constitution was passed on 3 May 1791. Its draft was developed by the leading minds of the Enlightenment in Poland such as King Stanislaw August Poniatowski, Stanisław Staszic, Scipione Piattoli, Julian Ursyn Niemcewicz, Ignacy Potocki and Hugo Kołłątaj. It was adopted by the Great Sejm and is considered the first constitution of its kind in Europe and the world's second oldest one after the American Constitution.
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Another landmark document was the French Constitution of 1791.
The 1811 Constitution of Venezuela was the first Constitution of Venezuela and Latin America, promulgated and drafted by Cristóbal Mendoza and Juan Germán Roscio and in Caracas. It established a federal government but was repealed one year later.
On 19 March 1812, the Spanish Constitution of 1812 was ratified by a parliament gathered in Cadiz, the only Spanish continental city which was safe from French occupation. The Spanish Constitution served as a model for other liberal constitutions of several South European and Latin American nations, for example, the Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e., in the Kingdom of the Two Sicilies), the Norwegian constitution of 1814, or the Mexican Constitution of 1824.
In Brazil, the Constitution of 1824 expressed the option for the monarchy as a political system after Brazilian Independence. The leader of the national emancipation process was the Portuguese prince Pedro I, the elder son of the king of Portugal. Pedro was crowned in 1822 as the first emperor of Brazil. The country was ruled by a Constitutional Monarchy until 1889 when it adopted the Republican model.
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In Denmark, as a result of the Napoleonic Wars, the absolute monarchy lost its personal possession of Norway to Sweden. Sweden had already enacted its 1809 Instrument of Government, which saw the division of power between the Riksdag, the king and the judiciary. However the Norwegians managed to infuse a radically democratic and liberal constitution in 1814, adopting many facets from the American constitution and the revolutionary French ones, but maintaining a hereditary monarch limited by the constitution, like the Spanish one.
The first Swiss Federal Constitution was put in force in September 1848 (with official revisions in 1878, 1891, 1949, 1971, 1982 and 1999).
The Serbian revolution initially led to a proclamation of a proto-constitution in 1811; the full-fledged Constitution of Serbia followed few decades later, in 1835. The first Serbian constitution (Sretenjski ustav) was adopted at the national assembly in Kragujevac on 15 February 1835.
The Constitution of Canada came into force on 1 July 1867, as the British North America Act, an act of the British Parliament. Over a century later, the BNA Act was patriated to the Canadian Parliament and augmented with the Canadian Charter of Rights and Freedoms. Apart from the "Constitution Acts, 1867 to 1982", Canada's constitution also has unwritten elements based in common law and convention.
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Principles of constitutional design.
After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who ruled by decree, or mere personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-kings". Later writers, such as Aristotle, Cicero and Plutarch, would examine designs for the government from a legal and historical standpoint.
The Renaissance brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary "laws of war and peace" to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for the abuse of such authority.
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A seminal juncture in this line of discourse arose in England from the Civil War, the Cromwellian Protectorate, the writings of Thomas Hobbes, Samuel Rutherford, the Levellers, John Milton, and James Harrington, leading to the debate between Robert Filmer, arguing for the divine right of monarchs, on the one side, and on the other, Henry Neville, James Tyrrell, Algernon Sidney, and John Locke. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a social contract or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.
Along the way, several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as Montesquieu, also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions was not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.
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The later writings of Orestes Brownson would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the "constitution of nature" that includes all of what was called "natural law". The second is the "constitution of society", an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it establishes the third, a "constitution of government". The second would include such elements as the making of decisions by the public conventions called by public notice and conducted by established rules of procedure. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a state is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that provisions of a written constitution of government can be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.
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Other writers have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.
Constitutional design has been treated as a kind of metagame in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame Nomic.
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Political economy theory regards constitutions as coordination devices that help citizens to prevent rulers from abusing power. If the citizenry can coordinate a response to police government officials in the face of a constitutional fault, then the government have the incentives to honor the rights that the constitution guarantees. An alternative view considers that constitutions are not enforced by the citizens at-large, but rather by the administrative powers of the state. Because rulers cannot themselves implement their policies, they need to rely on a set of organizations (armies, courts, police agencies, tax collectors) to implement it. In this position, they can directly sanction the government by refusing to cooperate, disabling the authority of the rulers. Therefore, constitutions could be characterized by a self-enforcing equilibria between the rulers and powerful administrators.
Key features.
Most commonly, the term "constitution" refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service/administration. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called "Basic Law".
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Classification.
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten; see constitutional convention.
Codified constitution.
Most states in the world have codified constitutions.
Codified constitutions are often the product of some dramatic political change, such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. The legitimacy (and often the longevity) of codified constitutions has often been tied to the process by which they are initially adopted and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to the separation of powers and the rule of law.
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States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a legal statute and the codified constitution, all or part of the statute can be declared "ultra vires" by a court and struck down as unconstitutional. In addition, exceptional procedures are often required to amend a constitution. These procedures may include: the convocation of a special constituent assembly or constitutional convention, requiring a supermajority of legislators' votes, approval in two terms of parliament, the consent of regional legislatures, a referendum process, and/or other procedures that make amending a constitution more difficult than passing a simple law.
Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called "unconstitutional constitutional law".
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Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. The preamble, which is omitted in some constitutions, may contain a reference to God and/or to fundamental values of the state such as liberty, democracy or human rights. In ethnic nation-states such as Estonia, the mission of the state can be defined as preserving a specific nation, language and culture.
Uncodified constitution.
only two sovereign states, New Zealand and the United Kingdom, have wholly uncodified constitutions. The Basic Laws of Israel have since 1950 been intended to be the basis for a constitution, but as of 2017 it had not been drafted. The various Laws are considered to have precedence over other laws, and give the procedure by which they can be amended, typically by a simple majority of members of the Knesset (parliament).
Uncodified constitutions are the product of an "evolution" of laws and conventions over centuries (such as in the Westminster System that developed in Britain). By contrast to codified constitutions, uncodified constitutions include both written sources – e.g. constitutional statutes enacted by the Parliament – and unwritten sources – constitutional conventions, observation of precedents, royal prerogatives, customs and traditions, such as holding general elections on Thursdays; together these constitute British constitutional law.
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Mixed constitutions.
Some constitutions are largely, but not wholly, codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australia's constitution is not contained in a single constitutional document. It means the Constitution of Australia is uncodified, it also contains constitutional conventions, thus is partially unwritten.
The Constitution of Canada resulted from the passage of several British North America Acts from 1867 to the Canada Act 1982, the act that formally severed British Parliament's ability to amend the Canadian constitution. The Canadian constitution includes specific legislative acts as mentioned in section 52(2) of the Constitution Act, 1982. However, some documents not explicitly listed in section 52(2) are also considered constitutional documents in Canada, entrenched via reference; such as the Proclamation of 1763. Although Canada's constitution includes a number of different statutes, amendments, and references, some constitutional rules that exist in Canada are derived from unwritten sources and constitutional conventions.
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The terms "written constitution" and "codified constitution" are often used interchangeably, as are "unwritten constitution" and "uncodified constitution", although this usage is technically inaccurate. A codified constitution is a single document; states that do not have such a document have uncodified, but not entirely unwritten, constitutions, since much of an uncodified constitution is usually written in laws such as the Basic Laws of Israel and the Parliament Acts of the United Kingdom. Uncodified constitutions largely lack protection against amendment by the government of the time. For example, the U.K. Fixed-term Parliaments Act 2011 legislated by simple majority for strictly fixed-term parliaments; until then the ruling party could call a general election at any convenient time up to the maximum term of five years. This change would require a constitutional amendment in most nations.
Amendments.
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document.
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Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation.
Methods of amending.
"Some countries are listed under more than one method because alternative procedures may be used."
Entrenched clauses.
An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. For example, the U.S. Constitution has an entrenched clause that prohibits abolishing equal suffrage of the States within the Senate without their consent. The term eternity clause is used in a similar manner in the constitutions of the Czech Republic, Germany, Turkey, Greece, Italy, Morocco, the Islamic Republic of Iran, Brazil and Norway. India's constitution does not contain specific provisions on entrenched clauses but the basic structure doctrine makes it impossible for certain basic features of the Constitution to be altered or destroyed by the Parliament of India through an amendment. The Constitution of Colombia also lacks explicit entrenched clauses, but has a similar substantive limit on amending its fundamental principles through judicial interpretations.
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Constitutional rights and duties.
Constitutions include various rights and duties. These include the following:
Separation of powers.
Constitutions usually explicitly divide power between various branches of government. The standard model, described by the Baron de Montesquieu, involves three branches of government: executive, legislative and judicial. Some constitutions include additional branches, such as an auditory branch. Constitutions vary extensively as to the degree of separation of powers between these branches.
Accountability.
In presidential and semi-presidential systems of government, department secretaries/ministers are accountable to the president, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election.
In parliamentary systems, Cabinet Ministers are accountable to Parliament, but it is the prime minister who appoints and dismisses them. In the case of the United Kingdom and other countries with a monarchy, it is the monarch who appoints and dismisses ministers, on the advice of the prime minister. In turn the prime minister will resign if the government loses the confidence of the parliament (or a part of it). Confidence can be lost if the government loses a vote of no confidence or, depending on the country, loses a particularly important vote in parliament, such as vote on the budget. When a government loses confidence, it stays in office until a new government is formed; something which normally but not necessarily required the holding of a general election.
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Other independent institutions.
Other independent institutions which some constitutions have set out include a central bank, an anti-corruption commission, an electoral commission, a judicial oversight body, a human rights commission, a media commission, an ombudsman, and a truth and reconciliation commission.
Power structure.
Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: unitary, federal, and confederal. The distinction is not absolute.
In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates that sovereignty is ultimately contained at the centre. Some powers have been devolved to Northern Ireland, Scotland, and Wales (but not England). Some unitary states (Spain is an example) devolve more and more power to sub-national governments until the state functions in practice much like a federal state.
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A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions (called "states", "provinces", etc.) which compose the territory of the whole state. Sovereignty is divided between the centre and the constituent regions. The constitutions of Canada and the United States establish federal states, with power divided between the federal government and the provinces or states. Each of the regions may in turn have its own constitution (of unitary nature).
A confederal state comprises again several regions, but the central structure has only limited coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare, and there is often dispute to whether so-called "confederal" states are actually federal.
To some extent a group of states which do not constitute a federation as such may by treaties and accords give up parts of their sovereignty to a supranational entity. For example, the countries constituting the European Union have agreed to abide by some Union-wide measures which restrict their absolute sovereignty in some ways, e.g., the use of the metric system of measurement instead of national units previously used.
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State of emergency.
Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended. This provision can be and has been abused to allow a government to suppress dissent without regard for human rights – see the article on state of emergency.
Facade constitutions.
Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a facade for authoritarian sources of power. While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened, or never put into practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly and freedom of speech; however, citizens who transgressed unwritten limits were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are ultimately provided not through its written terms but through deference by government and society to its principles. A constitution may change from being real to a facade and back again as democratic and autocratic governments succeed each other.
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Constitutional courts.
Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany, this function is carried out by a dedicated constitutional court which performs this (and only this) function. In other countries, such as Ireland, the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to be unconstitutional does not exist.
A constitutional violation is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, unconstitutional. An example of constitutional violation by the executive could be a public office holder who acts outside the powers granted to that office by a constitution. An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.
Some countries, mainly those with uncodified constitutions, have no such courts at all. For example, the United Kingdom has traditionally operated under the principle of parliamentary sovereignty under which the laws passed by United Kingdom Parliament could not be questioned by the courts. |
Common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Common law is deeply rooted in "stare decisis" ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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Terminology.
According to "Black's Law Dictionary," common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions." Legal systems that rely on common law as precedent are known as "common law jurisdictions."
Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. Well into the 19th century, common law was still defined as "unwritten law" ("lex non scripta") in legal dictionaries including "Bouvier's Law Dictionary" and "Black's Law Dictionary". According to William Blackstone's declaratory theory the common law reaffirmed pre-existing customs but did not make new law. The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.
Many notable writers, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer, eventually adopted the modern definition of common law as "case law" or "ratio decidendi," which serves as binding precedent.
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Basic principles of common law.
Common law adjudication.
In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.
In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity.
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Common law evolves to meet changing social needs and improved understanding.
Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions". Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.
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One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were parties to a contract (privity of contract). Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, "Winterbottom v Wright", the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The "Winterbottom" court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party.
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A first exception to this rule arose in 1852, in the case of "Thomas v. Winchester", when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger". "Thomas" relied on this reason to create an exception to the "privity" rule. In 1909, New York held in "Statler v. Ray Mfg. Co." that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed".
Yet the privity rule survived. In "Cadillac Motor Car Co. v. Johnson" (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes". The "Cadillac" court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the "Cadillac" court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud".
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Finally, in the famous case of "MacPherson v. Buick Motor Co.", in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to "Cadillac" a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:
Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger". "MacPherson" takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of "Winterbottom", that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that "some" boundary is necessary, "MacPherson" overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.
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The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.
Publication of decisions.
In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and law reports.
After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw", while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.
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Comparison with statutory law.
Statutes are generally understood to supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are contract law and the law of torts.
"Legislating from the bench".
At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what Roscoe Pound described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of statutory interpretation.
Jeremy Bentham famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law. Oliver Wendell Holmes once dissented: "judges do and must legislate".
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Statutory construction.
There is a controversial legal maxim in American law that "Statutes in derogation of the common law ought to be narrowly construed". Henry Campbell Black once wrote that the canon "no longer has any foundation in reason". It is generally associated with the Lochner era.
The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the plain meaning rule to reach decisions. As the United States Supreme Court explained in "United States v Texas", 507 U.S. 529 (1993):
As another example, the Supreme Court of the United States in 1877, held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.
Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law", which includes judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
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Overruling precedent—the limits of "stare decisis".
The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive.
Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting "en banc" (that is, all active judges of the court) or by a higher court. In these courts, the older decision remains controlling when an issue comes up the third time.
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Other courts, for example, the Court of Appeals for the Federal Circuit (formerly known as Court of Customs and Patent Appeals) and the US Supreme Court, always sit "en banc", and thus the "later" decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.
In the jurisdictions of England and Wales and of Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions, but not for criminal law cases in Scotland, where the High Court of Justiciary has this power instead (except on questions of law relating to reserved matters such as devolution and human rights). From 1966 to 2009, this power lay with the House of Lords, as it declared in the Practice Statement of 1966.
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Canada's federal system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.
Common law as a foundation for commercial economies.
The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right." This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply.
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In contrast, in jurisdictions with very weak respect for precedent, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides. In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less "a priori" guidance (unless the written law is very clear and kept updated) and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties.
This is why the law of the State of New York is frequently chosen in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States. Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. |
This is why the law of the State of New York is frequently chosen in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States. Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law, and American contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues. On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law. |
On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law. Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result.
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Likewise, for litigation of commercial disputes arising out of unpredictable torts (as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph), certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.
This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read.
History.
Origins.
The common lawso named because it was common to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed. The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs all of which were incorporated into the Norman common law is still a subject of much discussion. Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law, which included much of what would today be regarded as family law.
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The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center).
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom and precedent.
The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.
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Medieval English common law.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
At the time, royal government centered on the "Curia Regis" (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of Parliament, the Star Chamber, and Privy Council. Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. |
Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. The king's itinerant justices would generally receive a writ or commission under the great seal. They would then resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as "stare decisis" (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law".
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The king's object was to preserve public order, but providing law and order was also extremely profitable – cases on forest use as well as fines and forfeitures can generate "great treasure" for the government. Eyres (a Norman French word for judicial circuit, originating from Latin "iter") are more than just courts; they would supervise local government, raise revenue, investigate crimes, and enforce feudal rights of the king. There were complaints of the "eyre" of 1198 reducing the kingdom to poverty and Cornishmen fleeing to escape the eyre of 1233.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. The murder of the archbishop gave rise to a wave of popular outrage against the King. International pressure on Henry grew, and in May 1172 he negotiated a settlement with the papacy in which the King swore to go on crusade as well as effectively overturned the more controversial clauses of the Constitutions of Clarendon. Henry nevertheless continued to exert influence in any ecclesiastical case which interested him and royal power was exercised more subtly with considerable success.
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The English Court of Common Pleas was established after Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster, permanently except in the vacations between the four terms of the Legal year.
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. In England, judges have devised a number of rules as to how to deal with precedent decisions. The early development of case-law in the thirteenth century has been traced to Bracton's "On the Laws and Customs of England" and led to the yearly compilations of court cases known as Year Books, of which the first extant was published in 1268, the same year that Bracton died. The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.
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Influence of Roman law.
The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.
By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent. However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law. One of the first and throughout its history one of the most significant treatises of the common law, Bracton's "De Legibus et Consuetudinibus Angliae" (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's "Institutes". The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into "in rem" (typically, actions against a "thing" or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and "in personam" (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's "Commentaries on the Laws of England", and Roman law ideas regained importance with the revival of academic law schools in the 19th century. As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.
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Early modern era.
The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century. However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law.
West's encyclopedia of American law, defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts."
Coke.
The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke, in his treatise, "Institutes of the Lawes of England" in the 17th century.
As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his "Reports" (1600–1615), "the grounds of our common laws" were "beyond the memorie or register of any beginning".
Blackstone.
According to William Blackstone the unwritten law derived its authority from immemorial usage and "universal reception throughout the kingdom". While its precise meaning may have changed since Blackstone's time, in modern usage it is generally understood to mean law that is independent of statutes. This was repeated by the United States Supreme Court in "Levy v. McCartee": "It is too plain for argument that the common law is here spoken of, in its appropriate sense, as the unwritten law of the land, independent of statutory enactments".
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More specifically, in modern usage, this is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era.
Jeremy Bentham.
The term "judge made law" comes from Jeremy Bentham and the modern practice of adjudication as application of precedent derived from case law begins with Jeremy Bentham's attack on the legitimacy of the common law. The modern legal practice of applying case law as precedent made obsolete the declaratory theory of common law that prevailed in Blackstone's time.
Propagation of the common law to the colonies and Commonwealth by reception statutes.
A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.
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Other examples of reception statutes in the United States, the states of the U.S., Canada and its provinces, and Hong Kong, are discussed in the reception statute article.
Yet, adoption of the common law in the newly independent United States was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later President) John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in 1803, lawyers in Massachusetts donated their books to found a law library. A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose."
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For several decades after independence, English law still exerted influence over American common law—for example, with "Byrne v Boadle" (1863), which first applied the res ipsa loquitur doctrine.
Decline of Latin maxims and "blind imitation of the past", and adding flexibility to "stare decisis".
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such as those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims.
Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. Oliver Wendell Holmes Jr. in his famous article, "The Path of the Law", commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present", but "the man of the future is the man of statistics and the master of economics". In an 1880 lecture at Harvard, he wrote:
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