From what legal tradition do the long &quot;whereas&quot; motivation clauses of the EU legislation come? Practically all EU non-treaty legislation and regulations have pretty long "whereas" clauses, often pages long, introducing the context and often the motivation of the legislation/regulations. From which country's (if any) legal or legislative tradition are these detailed "whereas" clauses inherited?
These clauses are called recitals. Taken together, they are a form of preamble. The tradition of preambles is quite ancient. The Code of Hammurabi, for example, has a preamble. This preamble serves to establish the authority of the one enacting the laws, however, rather than his motivation. United Nations instruments typically use a series of participial phrases as preambular paragraphs (pdf) rather than subordinate clauses, but they have the same function of establishing context and motivation. I have not been able to locate the origin of this particular form of preamble, however. It seems to have evolved gradually from freely constructed preambles. I could not identify when this form became fixed.
This distinction was once important in English law, and other common-law systems derived from it, because common-law courts felt free to punish a Malum in Se even when there was no relevant statute, while a Malum Prohibitum would be punished only if it violated a specific statute. But today in the US, and to a large degree in the UK and other common-law countries, nearly all law has a statutory basis (although subject to interpretation by courts). Thus the distinction between Malum in Se and Malum Prohibitum no longer makes a significant difference, and is pretty much purely academic, except in a historical context.
As mentioned in the comments, there is no general method for this, but there are certainly good ways to get started. Note that copyright status is determined on a country by country basis, so "the country" in this answer refers to one you are living in, in this case Canada. First, there's a quick test to determine if a work is definitely copyright. Most countries have signed the Berne Convention which provides for copyright lasting a minimum of 50 years after the author's death for literary works. In general, it also provides that a country treat works published in other Berne countries as if it were published in its own, with respect to copyright. I'll call this the equality rule. So we have that: If the country acceded to the Berne Convention before the publication date of the book and the author is still living, or died less than 50 years ago, the book is under copyright. If the above did not apply, there are still steps you can take: Look up the country's copyright term. Find the legislation that established the copyright term. If the country has changed copyright terms over the years, the legislation will often provide for how books published before term changes are to be treated with respect to the new legislation. For Berne parties, does the country apply the rule of the shorter term? This is the main exception to the equality rule. The country may choose to use the country of origin's term instead of its own if it is shorter. If this is the case, then, you must read the country of origin's legislation with respect to copyright terms. The vast majority of legislation introduced affecting copyright terms has served to increase its length. Thus, if you pretend that the current copyright term applied back when the book was published, and find that the book is no longer under copyright, you can almost always assume that is actually the case. For an example of how complicated this can be, see this analysis on whether public domain works in the US are copyright in the UK. The UK has been a Berne party from the start, but has at times changed its term length, and whether or not it applies the rule of the shorter term. The US has only been a Berne party since 1989. Before this, they required copyright registration and didn't always base the copyright term on the author's death. In general, the factors you mentioned have the following effect: For Berne parties (as of publication date), this is only relevant for those applying the rule of the shorter term. Important to know this date when reading copyright legislation, as the applicable term often depends on this. Mostly relevant to pre-Berne accession, especially in the US Same as 3. Important, to know what laws ultimately apply. An additional factor you usually need: date of author's death (longest living author in case of multiple authors), as the term is based on this for Berne parties.
Legally, nothing Grammatically they mean what parenthesis always mean, that the parenthesised words are less important i.e. parenthetical. Organisationally they serve to group legislation together. This is particularly common in regulations and other subordinate legislation where the tradition is that the regulation takes the name of the Act it is created under. Where there is more than one, the specific function of the regulation is put in parentheses. For heavily legislated areas, like Housing, some parliaments do the same thing for Acts.
Contemporary decisions of domestic British courts (e.g. the Supreme Court) are not binding in foreign jurisdictions. They may be persuasive for courts there, because there is a common legal tradition and the U.K. judiciary is often considered to be quite good. Some countries have preserved a right of appeal to the Judicial Committee of the Privy Council (aka &quot;The Queen in Council&quot;). This body is basically the same judges as the Supreme Court but sitting in a different room. As the JCPC their decisions are precedential in wherever the appeal came from, and potentially elsewhere if the law in question is the same. Corollary: JCPC decisions are not precedential for British courts, unless the JCPC goes out of its way to say so. In these cases, the JCPC applies the law and constitution of the origin country, which can include retained pre-independence British laws as well as the common law. That country could pass a subsequent statute or constitutional act overriding the JCPC's decision (as Parliament could in the U.K.), so that country retains ultimate control even though one of &quot;its&quot; courts is a shared one sitting in London. This arrangement can cause dissonance. For example, some Caribbean countries would like to execute people, but that is prohibited in the U.K.; the JCPC continues to permit executions to go ahead in some cases, even though that would be illegal if the same judges were in a different room hearing a British case. There are very occasional cases from Brunei, whose law is determined by the Sultan and includes aspects of Islamic law not known in the U.K. legal tradition.
what does the phrase &quot;in this act unless context requires otherwise&quot; mean? It means that the provision or statutory definition is not to be imposed where its application would make no sense or would lead to an absurd outcome. Using the example point out, statutory or judicial references to &quot;laws of physics&quot;, &quot;law of supply and demand&quot;, and so forth are not to be construed as enactments or rulings issued by some authority. Accordingly, such laws are not susceptible to violation, enforcement, or repeal.
Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions &amp; language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws).
Legal Education Compared In the U.S., the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing three years of course (with no thesis or dissertation) at the graduate level, after completing a non-law related undergraduate degree (customarily four years but including non-legal studies), and then taking a several week bar exam preparation course and passing the bar exam. In many other common law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a three or four year preprofessional undergraduate degree, with a primary concentration in law but also including other general education requirements, followed by preparation for and sitting for a bar exam, and sometimes a period of apprenticeship or internship. In most civil law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a bachelor's level undergraduate degree which is taken by both people who want to become practicing lawyers and also by people who want to go into business with legal knowledge, followed by very extensive bar exam preparation in the context of an internship or apprenticeship somewhat similar to that of a U.K. barrister. This is complicated somewhat by the fact that the U.K. and most civil law countries have multiple different legal professionals rather than a unified legal profession like the U.S. The U.K. has barristers (trial advocates) who have more education through the &quot;inns of court&quot; and solicitors. Civil law systems typically have more kinds of legally trained professionals with legally trained notaries with transactional law practice infused with the keeping of public records, prosecutors, judges, trial advocates, sometimes specialist public law lawyers, and legally trained non-lawyers (typically in business) all belonging to separate professions with different roles in the legal system. No entry level lawyer who has been admitted to practice knows the whole of the law in the country where that student has studied, and generally, even very experienced lawyers will be experts in some parts of the law, and have only a vague notion of where to learn the law in other areas where the lawyer practices only infrequently or not at all. In common law countries, legal education focuses on &quot;edge cases&quot; and the way that edge cases are argued, and leaves instruction to many &quot;black letter&quot; rules of law to be learned in bar exam preparation and after entering the practice of law to learn on the job. In civil law countries, legal education focuses on providing students with a comprehensive outline of the &quot;black letter&quot; law rules of law in the area of private law and criminal law and a few bits of public law, and learning methods of argument, advocacy and edge cases is reserved for learning on the job in practice. In both systems, the primary way that one learns the law as a future lawyer in the first instance is from textbooks, rather than primary authorities, although common law country law school textbooks have a heavier mix of excerpts from court cases selected by a professor, while civil law country law school textbooks have a heavier mix of statutory language excerpts and exposition form the professor writing the textbook. Lay Understanding Of Particular Areas Of Law Please estimate: what is the difference in amount of work needed in these two systems to become familiar with an area of law? Please estimate for a well-educated person (with a college degree or higher) but is not a lawyer and does not plan to become one. A well-educated person with a college degree or higher but is not a lawyer and does not plan to become one faces a very steep learning curve in either system to become familiar at a functional level with an area of law. Most of what a lawyer learns in school is the larger context and method of analysis, research skills and an ability to identify legal issues. In common law countries, a lot of this is learning how the case law making system works and having an unwritten outline of key issues in areas of law that would be codified in civil law countries. In civil law countries, a lot of this is learning how general parts of civil law codes interact with more specific provisions, and being aware of the &quot;gloss of interpretation&quot; (often in scholarly work by law professors) that is given to a superficially very vague and short provision like the section of a civil code imposing tort liability, and also how to research legal issues in that system. You really need to know all of this general material to have a competent and comprehensive understanding of specific legal issues, whether you have one that you are investigating or twenty. So, it is extremely inefficient for a non-lawyer to master a single legal issue. The difference in the learning curve between civil law systems and common law systems from pure primary sources is greatly reduced because both are intermediated by secondary sources that explain them in a more efficient and pedagogically sound manner. Rather than largely being a difference between say, the French system and the Colorado system, for example, the biggest difference in the learning curve involved the nature of the particular legal issue that you want to know about within a particular system. For example, in both the U.S. and in France, the body of law that governs child custody and child support is very self-contained. If you master the legal principles and authorities in that area of law, you can fairly swiftly know all of the substantive law issues and research issues involved. On the other hand, in both the U.S. and in France, the body of law that governs a property division in a divorce is absolutely sprawling. This is not because the law of property division itself, in sensu stricto, is terribly vast, but because applying the relatively simple law of property division to any set of facts, presupposes and requires a comprehensive knowledge of the private laws of property, contracts and other legal obligations, and associated tax laws, which can be quite vast over the full range of legal and property rights the might need to be divided in some divorce, sometime. It is the opposite of being self-contained. Similarly, immigration law or patent law questions can often be resolved and understood almost entirely within the four corners of a small number of statutes and regulations, while tax law questions, like property divisions in divorces, interface with a vast expanse of property, contract and legal obligations that might arise. As a general rule, laws pertaining to personal status tend to be self-contained, while laws in areas implicated property ownership and legal rights more generally, tend to require an expansive knowledge of many areas of law. Starting From Scratch While codification v. case law doesn't make much of a difference in the amount of work needed to become a lawyer or to understand a particular legal issue, codification does provide a decisive advantage in the case of a country seeking to adopt a new legal system from scratch, and many former European colonies have done, which is why civil law systems are so much more common globally. From the perspective of a legislature and judiciary starting from a more or less clean slate, it is much easier to adopt a mildly edited set of civil codes as the starting point for the law of your country, than it is to incorporate centuries of case law from some other country into the law in a country that has never used a common law system case law system &quot;organically&quot; prior to adopting its own set of laws. Even then, it is much harder for legislators to be clear on precisely what laws it is that they are adopting at the outset in a common law case law based system where many legal rules are implicit in decisions that are only imperfectly indexed, rather than explicitly codified. And, from a legislator's perspective, adopting a comprehensive new legal system without any clear delineation of what laws you are actually adopting in your new country, is very undesirable, unless you are merely grafting onto a common law legal system that has already long been in force in your country prior to starting its new legal system, with which all prospective legal practitioners in your country are already intimately familiar.