English history - development common law and equity PDF

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The english history of common law and equity...

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ANGLAIS COURS 2

The development of Common Law and Equity ! The unification of the english legal system start in1066 (beginning organization english law, Guillaume 1st) , and little by little UK became unified. " But, the common law was not sufficient there were problem using this common law. In the middle ages, 3 problems : $ - The common law provided only damages, there were a case only solution to solve the case was sold damages, giving money. There was a need for something different that common law. «&No writ, no remedy!». At the beginning of the case there is a rite, a paper to tell the problem : the dispute - petitions. And sometime there were problem on the wording of the writ. So people couldn’t find remedy. No sufficient.$ - The common law was administrate by judge appointed by the king. System of Assizes system, there were judge at the King’s Court, they were seat in Westminster and over Judge sitting in London. These judge appointed by the King they were supporting the king. There were not impartial, they make preference to people supporting the king. From the common law, emergence of something else : Gradual emergence." $ Equity is an other branch of english law. $ The king at the time was called the Fountain of the justice. " Elisabeth 2nd : The fountain of justice it’s mean the king can do no wrong. This is why the King’s Court impose itself to the all country. " 3 common law Courts in Westminster at the time and an other court in Westminster : The Court of Chancery (Chancellor). The chancellor is a close friend of the king. Also administrate justice. In fact, the people who was disappointed by the court can go to the court of chancery administrate by the chancellor. The office of chancellor came from the Court of Charlemagne. The chancellor was called the Keeper of the King Country. He was closely associate to the King but his decision were different. The chancellor was a member of the King’s Council and would deal with people who have problem more justice. There were petition, dispute present to the chancellor. The common law court was influence by very important people.$ The chancellor can remedy problem and gradually wrote the emergence of Equity.$ Equity means levely and quote of chancery and gave any solution that common law don’t. $ People were influence by Cannon Law : the law of God. Church : principe of Cannon law and make a gap with the civil law. $ Equity permitted, allowed judges to create new concept and remedy. 2 different systems know as common law and chancery. Equity prevail !!!! A RETENIR$ 1873 - 1875 : There was emergence of equity and common law (The 2 systems, in the same Court. Equity privail) which made possible to the 2 Court to remedy. $ Important creation : Parliament established the High Court and the Court of Appeal. The right of appeal in civil case.$ Certain number of concept use today who are based on equity. Ex : Supposed a married couple. The father leave the house. His wife has a equitable right. She can stay in the house because she has children => Equity law.$ This concept of equity steal valid today. Give birth of case law : law by judges : equity case law is influence by the need of a new sort of remedy not only financial.$ Definition of Statute law : The first source of law : Case law, law by judges. The second source of law, in opposition with Case law : Statute law.$

ANGLAIS COURS 2 Statute law : legislation. It cames with establishment of the Parliament : XIII century.$ In England all legislative power was and still in the hand of Parliament. According to english, law parliament is all powerful so when a bill («&projet de loi! ») has been voted and passed in both houses of parliament, it’s need a royal assent. " A bill is discussed then there is a vote in both houses (House of Common and House of Lords) and after that the bill goes to the monarch for the royal assents, and the bill become an act of parliament and it’s a part of Statute law.$ Only when the Queen or the King give his approuvable the bill became a act. Act are published in book called Statute books. The Court give an interpretation of Statute law when there is a problem. Judges have an influence. $ The application of the statute : by the judge give interpretation. $ Usally the Queen/King always sign the bill. No problem about that. The King must give there royal assents, it’s reveal the monarchy of the country. After the royal assents, the legislation may apply immediately after a short period of time. Commencement Order (définition a connaitre!!) define when the act should by apply : A Commencement Order is a Statutory Instrument that brings into force all or part of an Act of Parliament at a date later than the date the Act was passed.$ Developed from customs and legal decisions : before the law become common, decision were taken from different customs (coutume). Customs play an important part in English law. The origin of customs come from the anglo saxon period before the unification of english law. Custom very important during the anglo saxon period and have influence many law in the set of Common law. Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting.$ Cannon law : Chancellor were religious persons and they influence equity with principles coming from Church and Bible. Common law : from religion. Always adopted by the chancellor and comes from church. Law governing the catholic, the orthodoxe and anglican churches. $ Human Rights Act in 1998 => this act had many consequences on english law system. $ - On the principal of judicial precedent. This meant that in addition to ruling by national quote, judges must consider the previous decision of the European Court of human rights. The principal of judicial precedent :(définition en vert trouvé sur internet que j’ajoute pour mieux comprendre le principe) Precedents are the principles of law laid down by courts in previously decided cases. Under the English legal system, a judge is bound to follow the precedents laid down by higher courts while determining the case before => This principle is a fundamental principle of English law. What change with Human Right Act ? Before the enactment of HRA, courts could interpret statutes in a manner compatible with the Convention rights ONLY if the wording of statue in question was unclear or ambiguous.With the coming into force of HRA, the obligation to ensure compatibility with the Convention rights applies NOT ONLY to statutes, but also to the common law, thereby affecting the doctrine of precedent." This source is a european source which became a part of english law. $ Statutery interpretation : judges can interpret act of Parliament. When a wording of act, is ambiguous the court must find a concordance with the human right.$ Judicial appointment : the appointment of part time judges and the role of the lord chancellor have been changed to make sure that the judiciary is independent from the gouvernement according to the convention. With the adoption of this act in 1998, there was a very important change in english law because english law has to take in count European law. The english law had to take into account the former decision of the European human right. Britain had to change his institution in order to have a government, a parliament, which be independent one from the other, because it wasn't the case before. $ Britain have to apply the convention of European right. $ Parliament is all powerfull, it removed King’s power. Principle that «& King can do no wrong& » does not apply except for the religion. For the ne s’applique plus que pour la religion. Concerne politique, Parliament is all powerfull....