Common law chapitre 2 - Comparative Law is the study of differences and similarities between the legal PDF

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Common Law

Chapitre 2 The English Legal System !

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Common Law The UK is a constitutional monarchy. The Head of State is the monarch (not a president), whose duties, functions and powers are conscribed by convention.! One of the conventions is that the monarch is politically neutral.! England and Wales operate a common law system which combines the passing of legislation but also the creation of precedents through case law." ! The laws are established by the passing of legislation by Parliament which consists of the ‘Monarch’, the House of Commons and the House of Lords."! The House of Commons is directly elected by the people and the Prime Minister is traditionally a member of this House."! The Court System and case law are controlled by the judiciary which is completely separate to Parliament.! The United Kingdom is divided into three main jurisdictions (or selfcontained legal systems):! #

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England and Wales!

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Scotland!

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Northern Ireland.!

Each jurisdiction has its own laws, court system, lawyers and judges. However :! Laws that apply in one jurisdiction, particularly if they are derived from legislation (Acts of Parliament and Statutory Instruments) may apply equally, or very similarly, in other jurisdictions.! ! While the courts in each jurisdiction can decide cases differently from those in other jurisdictions, the final appeal for all of them goes to the UK Supreme Court.! Moreover, the process of devolution has resulted in variations between the laws of Wales and those of England, and even as between different regions in England. ! Acts of Parliament can take effect differently, or at different times, in different parts of the jurisdiction of England and Wales.! SECTION 1 Sources of the law : Laws may be defined as the rules that govern the behavior of human beings within a civilized society. ! Unlike scientific laws, which are discerned from observation of the material universe and are immutable (though our knowledge of them may change), legal laws are decided and declared by human beings, and may be changed by further human intervention. ! This is true whether the justification of the law is religious, philosophical or political.! #

Primary sources of the law are !

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Common Law 1) legislation (acts of parliament or statutes, statutory instruments, orders in council…) ! #

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What is an act of parliament ?

An Act of Parliament creates a new law or changes an existing law. An Act is a Bill that has been approved by both the House of Commons and the House of Lords and been given Royal Assent by the Monarch. ! Taken together, Acts of Parliament make up what is known as Statute Law in the UK.! Putting the act into force : ! The Government are responsible for bringing new laws into force, once they have been passed by Parliament.! An Act may come into force immediately, on a specific future date, or in stages. You can find out when an Act is due to come into force by looking at a section of the Act itself, headed ‘Commencement' – this is among the very last sections of an Act.! Sometimes a specific date is not given and the timing is left to the discretion of the Secretary of State for the relevant government department.! Although Parliament is not responsible for implementing legislation, its committees can investigate how well an Act is being implemented by the Government and the effect that the new law is having. This is known as post-legislative scrutiny.! Changes to acts : ! Future changes to the law happen through the passing of another Act or delegated legislation. ! An Act can also be repealed so that its provisions no longer apply. ! Parliamentary committees examine UK laws and recommend the removal of out of date legislation.! Finding the text of Acts : ! Almost all current Acts of Parliament are available to read on the Legislation.gov.uk website.! Be aware that the text of the original Act passed by Parliament will differ from a revised version of the Act that incorporates changes made by subsequent legislation.! Writing of acts : ! The UK Houses of Parliament changed from hand writing original Acts of Parliament to printing them in 1849. They are printed on vellum, and still are to this day.! Text of acts as passed ! Texts of most Acts of Parliament as originally passed by Parliament since 1800 are available on the Legislation.gov.uk website. The Parliamentary Archives has copies of original Acts from 1497.!

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Common Law 2) Case law decisions of the higher courts, or «"courts of record"», which are binding on and must be followed and applied by less senior courts.! Case law (or judicial precedent) is law which is made by the courts and decided by judges. Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. ! This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.! In order for the principle of stare decisis to operate, a judge must know what the previous decisions of courts are. ! Case reports, or “law reports”, make this possible. Although earlier collections of cases exist, it was in the 19th century that a formalised system of law reporting was established in Scotland and England. ! There are currently many different series of law reports published, which reproduce judgments and add supplementary information by an editor. ! It may take some time between a judgment being handed down and its being published as a report. Similar systems of law reporting operate in other common law jurisdictions.! The main sources of cases are law reports, digests and official transcripts.! Secondary sources of law are : #

textbooks and commentaries by legal writers,!

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the opinions of legal experts, !

# decisions of the courts (of whatever seniority) of other (foreign) jurisdictions,! All of which are treated as “persuasive” and may be taken into account by a court when making a decision, though the court is not bound to do so.! ! §1 Common Law Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules"of law."! The U.S. common-law system evolved from a British tradition that!spread to North America during the 17th- and 18th-century colonial period. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law, also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the commonlaw courts of England since the Middle Ages. ! From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations).!

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Common Law

A precedent, known as stare decisis, is a history of judicial decisions which form the basis of evaluation for future cases. ! Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a"case at hand.! The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. ! This system promotes stability and consistency in the U.S. legal justice system. ! However, lower courts can choose to modify or deviate from precedents if they"are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.!

Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the"cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. ! Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. ! While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.! Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. ! Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. ! In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ between districts.! The English common law originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. ! Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. ! ! The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.! The common law of England was largely created in the period after the Norman Conquest of 1066. !

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Common Law The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government.! §2 Equity Equity, in Anglo-American law, the custom of courts outside the common law or coded law. ! Equity provided remedies in situations in which precedent or statutory law might not apply or be equitable.! By the end of the 13th century, the English king’s common-law courts had largely limited the relief available in civil cases to the payment of damages and to the recovery of the possession of property.

They had refused to extend and diversify their types of relief to meet the needs of new and more complex situations. Disappointed litigants had turned to the king with petitions for justice because the courts had afforded either no remedy or one that was ineffective. These petitions were referred to the lord chancellor, who was the king’s principal minister. By the early years of the 14th century the petitions were going directly to the chancellor, and by the middle of that century the Court of Chancery was recognized as a new and distinct court.! Equity is fairness, in the thirteenth and fourteenth centuries pleading became quite intricate, and only certain causes of action qualified for legal redress. Frustrated plaintiff turned to the king. ! The court decisions were seen as arbitrary at first because they were issued by the Chancellor and not by by independent common law judges and also because they varied with each chancellor. # Equity will not suffer a wrong to be without remedy («"equity will only intervene when there is no adequate common law remedy"») ! # Equity follows the law («"Equity recognizes legal rights and does not take the place of the common law"») ! # He who comes to equity musty come with clean hands («"a litigant who has behaved unfairly in the dispute will be denied an equitable remedy"»)! # Equitable remedies are discretionary («"litigants do not have a right to an equitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case"») ! §3 Legislation Legislation is law made by parliaments. Legislation is also known as statute law, statutes, or Acts of Parliament. ! In Australia, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory and Norfolk Island. Other bodies, such as local governments, are given certain powers by parliaments to make legislation as well. It is a well-established principle inherited from British constitutional law that parliament is sovereign or all powerful. !

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Common Law This principle is controversial because, subject to constitutional limitations, it means that in theory parliament can make any law it wants to, even if it is contrary to what most people would regard as their basic rights. ! The fact that the law-makers must face election is one important brake on this power. However, many now call for the insertion of a constitutionally entrenched ‘Bill of Rights’ to guarantee that parliaments’ law-making powers respect these basic rights. This is yet to happen. ! The practical result of the principle of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and the common law, legislation will over-ride the common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them. “Legislation is written on the common law”.! §4 academic and partitioners treatises Investment arbitration is a new field of law and lawyering. It disciplines governments in extraordinary ways, and regulates legislative choice and policy discretion on questions of profound public importance. Yet the system is sometimes portrayed by practitioner-advocates as technical, obscure, or simply par-for-the-course. Debates are often dominated by lawyers and arbitrators with an obvious stake in the system’s perpetuation. Not everyone who has expertise in investment law, arbitration and regulation supports the current arrangements, however. I am one of (now) 48 academics who has expressed concerns about the investment regime. (I do not speak for other supporters of the statement here; the statement speaks for itself and any elaborations expressed in this comment are in my name only.) The statement’s supporters include legal academics and lawyers, economists, political scientists, sociologists, and specialists in development and in transnational regulation. By no means should we have the final word. But the views that we expressed were drawn from an extensive and rich body of work published by, among others, the supporters of the statement. Identified in the statement is the record of arbitrators in many cases adopting expansive interpretations of investment treaties. These interpretations have prioritized the protection of the property and economic interests of transnational firms over the right to regulate of states. Also identified in the statement is the exceptional role that damages have played as a remedy of first resort in investment arbitration. This use of state liability threatens democratic choice and the ability of governments to undertake innovative policies. Governments, as we have recommended, should replace or curtail the use of investor-state arbitration. As currently structured, the system lacks fairness, independence, and balance. The statement has prompted positive and negative reactions. Among the negative ones was a view that it was somehow not credible or appropriate for persons who do not work in investment arbitration to criticize its performance. On the contrary, I suggest that the decisions of investment arbitrators warrant attention by “outsiders” precisely because outsiders do not have a direct career interest in the system’s perpetuation and entrenchment. §5 Rules of citation for English cases ! The law Report Series A.C!! Appeal Cases. Ch.!! Law Reports, Chancery Division.

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Common Law Q.B.! Law Reports, Queen's Bench Division. K.B.!! Law Reports, King's Bench Division. Fam. Law Reports, Family Division. P.!!!! Law Reports, Probate Division.

Other commercial series : All ER All England Reports BCLC Butterworths Company Law Cases Cr. App. R! Criminal Appeal Reports Cr. App. R. (S) Criminal Appeal Reports Sentencing FSR! Fleet Street Reports ICR! Industrial Cases Reports IRLR! Industrial Relations Law Reports LLoyd's L.R. Lloyd's Law Reports P & CR! Property, Planning and Compensation reports WLR Weekly Law Reports Unlocking UK case citations : neutral citations :! Since the growth of electronic sources there have been unreported transcripts also available on all the major legal databases." Following on from this (from 2002) came the use of neutral citations where by each case was given a neutral citation to identify it." ! Confusingly these look like law report citations but consist of the year, the court abbreviation (for example EWCA Civ) and then the case number. If this is the only citation you have then you will not find it in any of the law reports series." You will need to look at one of the electronic sources to find the case these include Westlaw (subscription), Lexis Library (subscription) or bailli (free resource).! Example : [YEAR] COURT CASE NUMBER [2005] EWCA Civ 101!!! (this is the 101st case of 2005 in the Court of Appeal Civil division) [2006] EWHC 101 admin(101st case of 2006 in the High Court Administrative division) [2003] UKHL (now SC) 5 (5th case of 2003 in the House of Lords (now the Supreme Court)

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Common Law How to cite cases :! When citing cases there is a difference between cases before 2001/02 and after.! Cases before 2001

Cases after 2001/02

Reported

Party names / law report citation

Unreported

Party names / (unreported, date)

Example: !Reported Example : !unreported

Barrett v Enfield LBC [2001] 2 AC 550

Party names/ neutral citation/ law report citation Party names/ Neutral citation Dingmar v Dingmar [2006] EWCA Civ 942; [2007] Ch.109

Richards v Westgate Ltd (unreported, Brampton v Rust [2008] EWHC 216 (QB) 20th July 1995)

For a lot of cases you come across there will be a number of different law reports of that case.! It is important to try and cite the most authorative law report.! For many countries there is an official series but in the UK there are a large number of different report series.! To find the most authorative series for the UK you can use an online case citator tool such as Westlaw Case Analysis, JustCite or Lexis Library's Case Search which will have the list of law reports in order of authority.!

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Common Law SECTION 2 The court System of England and Wales §1 Hierarchy of the Courts

Criminals courts : The Crown Court hold trials of more serious offenses, deals with sentencing in cases the defendant has either pleaded guilty already, or been convicted and referred for sentencing by a magistrate’s court because of the relative seriousness of the offense, hears appeals from magistrates courts. Most trials in the Crown Court are conducted with a jury. Depending on the type of case, the judge will be either a High Court judge (J), a Circuit Judge (HHJ), or a part-time judge known as a Recorder. The Crown Court is a single entity, which sits in a number of locations. It is therefore more accurate to speak of the Crown Court at Reading than Reading Crown Court. Its most famous and senior location is the Central Criminal Court (CCC) at Old Bailey in London, often referred to simply as The Bailey. Magistrates Courts Magistrates deal with over 90% of criminal cases. The criminal jurisdiction of magistrates’ courts consists of : Deciding less serious cases, known as summary offences, Deciding medium serious offences, referred to as ‘triable either way’, unless the defendant insists on their right to trial in the Crown Court,

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Common Law Dealing with pre-trial issues in relation to the most serious offences, such as bail, reporting restrictions etc. Cases in a magistrates’ court are heard either by a bench of three magistrates, or Justices of the Peace, or by a single district judge or deputy district judge. Justices of the ...