Anglo-american Law - Cours d\'Anglo-american law de la rentrée 2019/2020 de l\'USMB de Chambéry PDF

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Cours d'Anglo-american law de la rentrée 2019/2020 de l'USMB de Chambéry...

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ANGLO-AMERICAN LAW Escargot Viol entre époux Tribunaux anglais 1875 act => Common Law courts WON; Common law courts use common law. / Equity comme source de droit, mais les Cours d’equity on disparues. Equity

Alexandre Guigue Examen anticipé : 2 questions de cours : 1 page simple pour une question et 1 page pour la seconde, avec un anglais simple et grammaticalement bon. La qualité du vocabulaire de l’anglais n’est pas notée ! Livre du prof d’introduction au droit anglais Angleterre- Pays de Galles de 2015 qui ressemble au cours ET EN FRANÇAIS ! Guigue et StephenGreen Regarder Moodle pour Powerpoint, bien les lire et comprendre - TD Common Law / Royaume-Uni

1. Categorisation of legal families American Legal System Konrad Zweigert (1911-1996) and Hein Kötz (1935- ) wrote a remarkable book called « An introduction to comparative law » in which they relate the development of comparative studies from 1901 in the university of Paris and the hope concerning this new legal field. The story of the 20th century tells us it was a failure. The original purpose is back, mainly in Europe with EU law but also worldwide with commercial relations or human rights. • Adhémar ESMEIN (1848-1913). Esmein searched to identify original systems of law through 3 criteria: - historical sources - general structure - particular characteristics 5 families: Romanistic, Germanic, Anglo-Saxon, Slav, and Islamic • ARMINJON / NOLDE / WOLFF classified with no exterior criterion but only using the substance of each family (originality, derivation and common elements). • 7 families: French, German, Scandinavian, English, Russian, Islamic and Hindu • René DAVID (1927-2008) chose only 2 criteria: – Ideology – Technique 5 families: Western, Socialist, Islamic, Hindu and Chinese But essentially 3 families: Romanistic-German, Common law, Socialist And a group of other (Jewish, Hindu, Far East) • Konrad ZWEIGERT and Hein KÖTZ identify 6 categories:

1. The Romanistic Legal Family. (mainly France)

2. The Germanic Legal Family. (Germany, Austria and Switzerland) 3. The Anglo-American Legal Family. (UK and USA) 4. The Nordic Legal Family. (Scandinavia) 5. Law in the Far East. (China and Japan) 6. Religious Legal Systems. (Islamic and Hindu) Miranda’s act : 5th amendment : droit de garder le silence L’idée était d’avoir un droit commun à tous Anglo-saxon : Ceux qui parlent anglais et qui ont des origines communes : Etats-Unis, Canada, Angleterre, New-Zeland, Australia, peut être Afrique du Sud … Civil law and common law dominate the world Quebec, la Louisianne, l’Afrique du sud (4 pays), Scotland, sont des mixtes entre common et civil law. 2. Common law and civil law Common law: 1. A legal system in which most of the law is judge-made and in which judges observe the doctrine of precedent. 2. A comprehensive body of rules and principles formulated by court decisions that are applied to future cases just as a judge would apply statutory law (often called case-law). Jurisprudence. 3. The comprehensive body of rules that was developed by courts in England over centuries and that judges in most Anglo-Saxon countries refer to. Jurisprudence anglaise du 13 au 20 ème siècle, leur droit commun. Civil law: It concerns most countries where Roman law was a source of inspiration and/or where most civil rules are codified. It concerns France and countries that it has influenced, notably through the Napoleon Code (1804).

Preliminary observations on the UK The Commonwealth The Commonwealth of Nations, or the Commonwealth is an intergovernmental organization of 53 member states, mostly territories of the former British Empire). It operates through the Commonwealth Secretariat and non-governmental organisations. Among the 53 countries which are part of the Commonwealth, 32 are Republics, 5 are Monarchies separate from the British Monarchy and 16 still recognize Queen Elizabeth as their Head of State. The United Kingdom of Great Britain and Northern Ireland is composed of 4 different nations: - England - Scotland - Wales - Northern Ireland

Apart from England, the three other nations benefit from a devolution process by which their Parliament or assembly is granted with legislative authority over a number of matters (devolved matters). Devolution was achieved through primary legislation in the 90’s. Scotland has a high level of autonomy but the Scottish National Party has kept fighting for more. On September the 18th 2014, Scottish people voted through a referendum to remain in the United Kingdom. -England: no particular power, the West Lothian question - Scotland: Scotland Act 1998, 2012 - Wales: Government of Wales Act 1998, 2006 - Northern Ireland:

Belfast agreement 1998, Northern Ireland Act 1998 All four nations are ruled by the Parliament of Westminster apart for devolved matters. DOCUMENT L. FREIDMAN : best text to common law explain L’angleterre et les pays de galles ont le même système juridique. En ecosse c’est totalement différent. Mais il n’y a qu’une Constitution pour tout le UK.

4. Sources of Law in the Anglo-American legal family For several reasons, UK is the leading example of this family so we shall describe the sources of law in UK (only occasionally the US).

1. The Constitution 2. The sources of legislation 3. Common law / case Law / Precedent 4. Equity. 1. The Constitution Although we will discuss UK here, we may also talk about the American Constitution because one is written and the other one not.

The American Constitution 1787 Key elements: Written instrument It establishes a federation. There is a separation of powers: Legislative, Executive, Judiciary The Bill of rights: amendments 1 to 10. There is a special amendment procedure to modify the Constitution.

Particularities: Resistance to time changes. Sacred status.

It must be noted that in the United States, every State has its own constitution. The length of the constitutions vary: - the constitution of Alabama: 287 sections and 880 amendments - the constitution of Vermont: 76 paragraphs The US Supreme court makes sure that the US constitution prevails.

The UK Constitution Key elements: Ancient Unwritten Parliament is entitled to change it. Parliament is sovereign. Rules coexist from the 13th century to the 21st.

Particularities: Modifying the Constitution is complicated. The definition and protection of liberties are weak under law The British Constitution has been built up throughout the centuries and is now made of a variety of elements. Changes in constitutional law: ordinary legislation. Relations between constitutional institutions are ruled by convention (rules of political conduct or binding usages). Often, strict law may not lead to the same conclusion than convention. Example:

In strict law, the Queen can dismiss her ministers at pleasure. But by convention, this legal power is exercisable only in very extraordinary circumstances, that is, because the Queen must act, save in exceptional circumstances, in accordance with ministerial advice. Also: in strict law, only the Queen has the power to dissolve the Commons. By convention, the Prime minister asks the Queen to dissolve. Written elements from the UK Constitution: Magna Carta 1215 The Petition of Rights 1628 The Habeas Corpus Amendment Act 1679 The Bill of Rights 1689 The Act of Settlement 1701 The Act of Union 1707 The First Reform Act 1832 The Parliament Acts 1911-1949 The Peerage Act 1963 The Race Relations Act 1968 The Representation of the People Act 1969 The European Communities Act 1972 The Scotland Act and the Welsh Act (1997, 1998, 2006, 2012) The Human Rights Act 1998 The Constitutional reform Act 2005 Written

Constitutional instruments Many authors have tried to describe the British constitution over the years: Walter Bagehot (1867), Albert V. Dicey (1900), Sir Ivor Jennings (1940, Denis Baranger (2008), Vernon Bogdanor (2009), Peter Leyland (2010). The judges have admitted the existence of constitutional statutes (= lois) which have a particular status compared to other statutes passed by Parliament: Thoburn v. Sunderland City Council [2002] EWHC 195 Admin. Lord Justice Laws: “the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998”. “The ECA clearly belongs in this family” (§ 62). As a consequence, “ordinary statutes may be impliedly repealed. Constitutional statutes may not”, § 63). More recently, the Supreme court decided on a conflict between two constitutional statues: The Bill of Rights 1689 and the European Communities Act 1972 HS2 Action Alliance Ltd v Secretary of State for Transport [2014] UKSC 3 One may say that those cases set the grounds for a hierarchy of norms.

AND NOW BREXIT? The sources of legislation

The sources of legislation may be divided into 4 parts:

a. Primary legislation. b. Secondary legislation (also called delegated legislation) c. EU law. d. Human rights.

Bill = projet/proposition

act = loi

United Kingdom: all MPs from the Commons but also the Cabinet. United States: all congressmen but not the President.

Then the legislative process begins.

b. Secondary legislation Or delegated legislation On occasions, MPs vote a general text and leave the details to authorities better suited. It enables the institutions to go faster.

A “Parent Act” or “Enabling Act” is taken before various authorities which use the delegated power. Three types of delegated legislation: - Statutory Instruments. Often a governmental department or a ministry. = Ordonances de l’art. 38 en France. - Bye-laws. Bye-laws are passed by local authorities. Parent act: The Local Government Act 1972. - Orders of the Legislative Committee of the Privy Council. These orders are made by the Government in times of emergencies, approved by the Privy Council and signed by the Queen. There are also orders giving legal effect to European Directives.

COURS DU PROF ANGLAIS: CHARLES

c. EU law

UK entered the EU system in 1973. In theory, international law only has effect when incorporated into English Law. The European Communities Act 1972 incorporated EU law into English Law. Consequence: any new EU law automatically becomes part of domestic law and potentially enforceable by the courts without the necessity each time of a new parliamentary enactment. Provisions of EU treaties and regulations have direct effect in the different member States. Directives require legislation to have an effect. Recommendations are not binding. Decisions of the European Court of Justice create precedents that the English courts are required to follow. There has been a debate, close to the French one, about the possible conflicts between statutes and European law.

d. Human rights

The European Convention on Human’s Rights is a Treaty of the Council of Europe and not the European Union. Therefore, as for EU law, it could not be directly enforced. So UK adopted the Human Rights Act 1998, which incorporated the Convention into English law. After obtaining Royal Assent in November 1998, it came into force in October 2000 (until then, magistrates and judges were prepared to implement the text). Nevertheless, the decisions of the European Court of Human Rights are not binding to them, but may serve as merely persuasive.

3. Case law / Common law / precedent Historically, much of the law in England was created by the judiciary through cases. This judge-made law is known as the common law. Although legislation has now taken a primary role, the judge-made law is essential to the English legal system.

But Parliament remains sovereign! When there is a parliamentary Act, it should be applied. When there is no legislative rule, the judge must use other sources of law. Often, solutions are found in the common law. Definition: the common law is a comprehensive body of rules and principles formulated by court decisions that are applied to future cases just as a judge would apply statutory law (often called caselaw). i) Principle: like cases should be treated alike.

This rule is said to help maintain a certain consistency in the legal system, and give law a certain predictability. However, the way case-law should be used by the judge is determined by rules contained in the doctrine of the precedent binding precedent: obligatory for other courts persuasive precedent: influential for other courts It became a rule of law that inferior courts could not decide in a manner entirely free from the decisions taken by any court superior in the hierarchy. At the time of William the Conqueror, there was no statutory law and judges had to find solutions to conflicts. The idea of binding precedent was first known as “stare decisis ” in the 17th century and then developed during the 19th. The Judicature Acts 1873-75 reformed the courts and created a court system strictly based on hierarchy.

Ratio decidendi

Decisions may be divided into two parts: The first part relates the facts which only apply to the parties. The second part is the application of the law. In the process, it is the ratio decidendi (the legal reasoning or principle that was applied to resolve the case) that becomes general law. Determining the ratio decidendi is not easy to do and it is a work lawyers and judges do in future cases. Obiter dictum does not become part of the case law. Too narrow ratio (too close to the facts) leads to a patchwork of small concrete legal rules. Too abstract ratio leads to a too general rule and might include future facts that were not meant in the first case. There are two aspects to the principle: - vertical hierarchy. Inferior courts must follow the decisions made by higher courts - horizontal hierarchy. The Supreme Court and the Appeal Court may reverse a former precedent (overruling). The Supreme Court normally follows its own precedents but can decide otherwise, under the conditions set by the House of Lords in 1966 and confirmed by the Supreme Court in 2010

(Austin v Mayor and the Burgesses of London Borough of Southwark [2010] UKSC 28). The Supreme Court tries not to disturb contract law, property law, tax law and criminal law. The Appeal Court should respect its own precedents. It can decide otherwise if: - two precedents are incompatible - one of its precedent collides with a precedent from the Supreme court - if the Appeal Court considers a precedent is wrong (per incuriam)

« Prospective overruling » Courts normally refuse to change a precedent for the future because they would excede their authority. This technique (« prospective overruling ») was said to go against the separation of powers.). In National Westminster Bank plc v Spectrum Plus Ltd and Others [2005] UKHL 41, Lord Nicholls confirmed this technique should not be used but suggested that it could be used in the future. Sometimes, the Supreme Court sends implied messages. It is notably the case in contract law (V. Royal Bank of Scotland v Etridge (N° 2) [2001] UKHL 44). Illustrations

I chose decisions from Supreme courts.

United Kingdom: House of Lords then Supreme court

United States: Supreme court

Canada: Supreme court

4. Equity. A quick look on wikipedia shows that the term is complex.

Finance, accounting and ownership Equity (finance), the value of an ownership interest in property, including shareholders' equity, in a business. Equity or shareholders' equity is part of the total capital of a business. Stock, the generic term for common equity securities is 'stocks’ Home equity, the difference between the market value and unpaid mortgage balance on a home Private equity, stock in a privately held company Equity in income of affiliates, an accounting term referring to the consolidated or unconsolidated ownership in affiliate companies Business and Law Equity (law), a branch of jurisprudence in common law jurisdictions. Equity (economics), the study of fairness in economics Educational equity, the study and achievement of fairness in education Intergenerational equity, equality and fairness in relationships between people in different generations (including those yet to be born). Equity theory, on the relations and perceptions of fairness in distributions of resources within social and professional situations. Employment equity (Canada), policy requiring or encouraging preferential treatment in employment practices for certain designated groups Health equity, fairness and justice in health and healthcare Abstract legal rules cannot treat fairly every possible situation that occurs. In some situations, the strict application of a rule may lead to an injustice. Equity helps to judge not through law, but through conscience (through natural law).

Definition: Equity is justice administered according to fairness as contrasted with the strictly formulated rules of common law.

But equity is not just looking at the mind of the judge. It refers to a particular set of rules, remedies and associated procedures. By the 15the century, the common law was slow and very technical. The defects of the system led to the popularity of the equity system. At the time, individuals had the possibility to go before the King and Council when dissatisfied by the court’s decision. During the 15th century, these cases were dealt by the Chancellor (also called the “keeper of the Kings Conscience”) who eventually held his own court, overriding the common law and issuing a decree in light of conscience and fairness. This developed so much that soon there were two different types of courts, the ones using common law and the ones using equity. Equity was never meant to replace common law but to fill in its gaps. Yet, there were many conflicts between the two. The courts of equity used the “maxims of equity” to assist them in their decisions. Examples: - he who comes into equity must come with clean hands. - Equity will not suffer a wrong to be without a remedy. - He who seeks equity must do equity. - Equity is equality. - Equity looks on that as done which ought to be done. - Equity regards substance rather than form. - Where equities are equal, the first in time will prevail. - Where equities are equal, the law will prevail. - Equity follows the law. - Delay defeats equity; - Equity will not concern itself with abstract wrongs. - Equity will not permit a party to profit by his own wrong. - Equity delights to do justice and not by halves. In time, just as the common law had its own set of rules, principles and remedies to the equity also acquired its own set of rules, principles and remedies. The two court system no longer made sense. The Judicature Acts 1873 – 1875 modified the structure of the court system, also provided that all courts could judge in law or in equity. Equity has a considerable role today. It remains a method of adapting law to the evolution of society.

In the United States, equity remains very strong. Most courts (federal courts and states courts) have merged law and equity in the courts of general jurisdiction.

Equity was an important source of law for “restitution” and “trust” for example. Those concepts were shaped out of equity, not out of common law.

The idea of equity in other countries: In most countries that belong to the Roman-Germanic family, equity is not considered a source of law. Yet most of the equity maxims have their equivalent in Roman-Germanic countries (provision from a code or judge-made principle).

DROIT ANGLOAMERICAIN Escargot Viol entre époux Tribunaux anglais 1875 act => Cours de droit commun WON; Les tribunaux de common law utilisent la common law. / Equity comme source de droit, mais les cours d’équité sur les disparues. Équité

Alexandre Guigue Examen anticipé: 2 questions de cours: 1 page simple pour une question et 1 page pour une seconde, avec un anglais simple et grammaticalement bon. La qualité du vocabulaire d...