SOURCES AND VARIETIES OF ENGLISH LAW

SOURCES AND VARIETIES OF ENGLISH LAW Unit 2

Preview • 1. Sourceoflaw • 2. English law • 3. Commonlaw: history • 4. Commonlaw vs. Stautelaw • 4. Equity: history • 5. Statute law: history • 6. EU law: sources • 7. Legal terms • 8. Exercises

Source of law(fons iuris) • Something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions • A point of origin for law or legal analysis

Great Britain • England, Scotland andWales • 1536 Wales united withEngland • 1707 Scotland united withtheTreatyof Union

The United Kingdom • 1800 Actof Union unitingpolitically Great Britainand Ireland: United Kingdomof Great Britainand Ireland • 1922 Irish Free State • 1927 thename United Kingdomof Great Britainand Northern Ireland adoptedbyactofParliament (UK)

English law • The law of England, Wales and Northern Ireland – very similar; the Scots law – quite different • The separate evolution of the two legal systems, both before and after the Union, has resulted in different principles, institutions and traditions • Scots law – based on Roman law

Sources of English law • Common law • (Equity) • Statute law • EU law

History of English law: The pre-Norman period (before 1066) • Based on ancient customs and traditions • Medieval states and their legal systems – fragmented • Local customs varied from community to community and were enforced in an arbitrary fashion

The pre-Norman period (before 1066) • Courts – informalpublicassembliesthatconsideredconflictingclaimsin a case; trialbyordeal (e.g. snatching a stone from a boilingwater or carrying a red-hotiron); trialbybattle (introducedbyNormansand legal until 1819)

William the Conqueror (1027?-87) • 1066 BattleofHastings • EstablishedCuriaRegis (King’s Court) – an instrument to governthecountryand a court for decidingdisputes • Legislative, judicialandexecutivecapacities

The Reign of Henry II (1154-89) • 1154 Henry II became the first Plantagenet king • First ruler powerful enough to centralize the country and its laws against the opposition of local barons

Henry II • By the Grace of God, King of the Englishand Duke of the Normans and Aquitaniansand Count of the Angevins

The Reign of Henry II (1154-89) • King of England, Duke of Normandy, the ruler of all western France • Medieval England: a polyglot community (English, French, Latin, Gaelic)

Henry II and the English Legal Renaissance • Institutionalized common law by creating a unified system of law common to the country • The central royal court whose decisions provided precedents to be followed in the future

Henry II and the English Legal Renaissance • Judicial functions = legislative functions • Established Royal Magistrate courts to adjudicate in local disputes • Introduced a jury system (witnesses of an event); trial by jury

Thejury • Underoaththeywere to giva a truestatementwhichwasreferred to as a “verdict” (veredictum) • Theyswore to telltheturth: jurors (juratores), meaning a person who hasbeensworn

Thejury • Voxpopulitook place ofthevox dei thatwasusedinordeals • 14c. jurorsbegan to take on the role theyhavetodayoftryingevidence • Thetrialofthefact: separatedfromtheapplicationofthelaw

Henry II • 18 judges: 5 remainedin London andtookoverthe King’s taskofdecidingcases (Westminster) • remainingjudges – sentout on circuits to travelthecountry – had to applythelawsthat had beenmadebythejudges at Westminster: locallawsreplacedby national lawsthatwouldapply to all: commonlaw

The Royal Courts (Westminster) • The Court ofExchequer (taxes) • TheBenchofCommonPleas (litigationbetweenprivateindividuals) • The King’s Bench (pleas to theCrown as opposed to commonpleas: King’s duty to protectthepeace)

Royal judges • Judgingcasesinthe same mannerusingthesamelaw – important for thedevelopmentofcommonlaw • 13th c. royal judgesbecame professional judges

TheWritSystem • Beginning a procedure before a local court .- anoralcomplaintbytheplaintiff • Access to royal courtswasnotseen at first as a right but as a privilege • Permission to petitionthesecourtswasnecessary

TheWritSystem • Inthepreliminary procedure, anindividual had to obtrain a writ • Writs - instructionsfromtheCrown to a royal officer, judge or magistrate, authorizinghim to summonthepersonto court and to resolvetheconflictinthepresenceoftheparties • Thewritcontained a briefsummaryoftheaffair

TheWritSystem • WritswereissuedbytheChancellorinthenameofthe King for a feepaidbytheplaintiff • Theycorresponded to differenttypesofactionsand procedure (e.g. writofdebt, writoftrespass) • New writscouldbeadded, sothenumberofwritsincreased

Thewritsystem • Dominatedbyformalism: rightsandremedieswereavailableonlyiftheproperwritcouldbefound • Formalism – of great importance; littleimportanceplaced on abstact legal rules • It was more important to have a rulewhich is constantthanthatwhichisfair

TheWritSystem • It wasessentialthat all couldknowandfeelconfidentinthedecisionthe court wouldmakesince it wouldbethe same decisionthatwasmadebeforeinprevious, similarcases • Disruptingthiscontinuitywouldhave graver consequencesthananoccasionalunfairapplicationofthislaw

JudicatureAct 1873 • Thethreecourtswereabolishedandtheirjurisdictionwastransfered to a singleHigh Court, with separate functionaldivisions

“From time immemorial” • In reign of Edward I (1272-1307) Parliament decided that ‘legal memory’ should run from the date of Henry’s death (1189) • Courts would take no account of any legal transactions which had taken place before it

Assize system • Survived for 800 years (until 1971) • Judges applied national laws, but would not ignore customs of the region • If they approved they would accept them as law and carried them to other parts of the country

Common Law: Definition • The body of law derived from judicial decisions, rather than from statutes or constitutions; a native product of Britain (‘judge-made law’)

Common Law • The legal system of Australia, Canada (except Quebec), England and Wales, Ghana, Hong Kong, India, Jamaica, Malaysia, New Zealand, Pakistan, the Republic of Ireland, Singapore, Sri Lanka, Tanzania, the USA (except Louisiana), the Bahamas, Zambia

Civil Law: Definition(ius civile = law of the state) • One of the two prominent legal systems in the Western World, originally adminstered in the Roman Empire and still influential in continental Europe, Latin America, Scotland, and Louisiana • The most influential modern civil code – Napoleonic Code (egalitarian ideals of the French Revolution; the law should be accessible to all)

TheCommonLaw vs Statute law • Commonlaw: unwritten = unenacted (=notpassedbytheParliament, but createdbycourts); inductiveprinciple • Statute law: written = enacted (= passedbytheParliament); deductiveprinciple

Common Law = Judge-Made Law • “There was a time when it was thought almost indecent to suggest that judges make law . They only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. ..

Common law- judge-made law • Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more. So we must accept the fact that for better or worse judges do make law, and tackle the question how do they approach their task and how should they approach it” (B. Cardozo, 1972)

Equity: Definition • 1. fairness, impartiality • 2. the body of principles constituting what is fair and right; natural law

Equity • 3. the recourse to principles of justice to correct or supplement the law as applied to particular circumstances • 4. The system of law or body of principles originating in the English Court of Chancery

Equity: History • No hierarchyofcourts • Dissatisfiedlitigantscouldonlypetitionthe King inperson (judicialfunction) • Judicialfunctions – delegated to Lord Chancellor, originallythe King’s confessorandthus “a keeperofthe King’s conscience”

Equity: History • The function of the Lord Chancellor evolved into that of the highest judge; dealt only with civil disputes (property, contracts) • Thomas More (1478-1535) - the first lawyer by profession to hold that function

Lord Chancellor and Chancery Courts • The function of the Lord Chancellor: to ensure fairness and justice if it was not provided by a common law court • A system of chancery courts developed that administered equity • Courts of common law – often in conflict with chancery courts

Court of Chancery • Conditions a personseekingjustice had to meet: • 1) he had to showthat he couldnotreceivejusticeinthecommonlawcourts • 2) had to showthat he waswithoutblame (‘coming to court withcleanhands’) • 3) had to show he had notdelayedinbringingthecasebeforethe court

Equity and Common Law • At first – no rules of equity; entirely based on Lord Chancellor’s conscience • Gradually equity evolved rules of its own, became closer to common law • 1873 The Judicature Act ‘merged’ common law and equity

Statute Law • Originally created by the monarch • By 13th c. gradually made through royal orders in response to petitions from the Parliament • Parliament became the legislating authority because of its growing power against the monarch

Modern Statutes • Modern statutes – 19th and 20th c. development • Statutes – Acts of Parliament, created after a bill has been accepted by both Houses of the Parliament and signed by the monarch • Supreme over all other forms of domestic law

Statute law vs. Common law • Judges interpret statutes and thus create new precedents • Interpretation: literal meaning or purpose?

McBoyle vs. US (1930) • The petitioner – convicted of transporting a stolen vehicle across state lines in contravention of the National Motor Vehicle Theft Act (1919) • Section 2. of the Act defined a motor vehicle as including “an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails...”

McBoyle vs. US (1930) • The short point was whether an aircraft fell within the statutory definition of a vehicle • On its natural reading, the definition seemed to contemplate that a vehicle ran on the land and, whilst the phrase “any other self-propelled vehicle” might have been seized upon to widen the definition, the court declined to take this opening. The offence, therefore, had not been committed

Sources of EU Law • Primary: the Treaties • Secondary: • 1. Regulations – binding in their entirety and directly applicable in all the Member States • 2. Decisions: binding on those to whom they are addressed • 3. Directives: binding upon each Member State to which they are addressed; methods left to the Member States

Legal terms • Zakon • Law • statute • Act of Parliament (bill=prijedlog zakona) • Legislation (= zakonodavstvo; zakoni)

Legal terms • Equity= pravičnost; pravosudni sustav koji stvaraju suci (različit od common law), a zasniva se na načelu pravičnosti • Legal remedy • Pravni lijek

SOURCES AND VARIETIES OF ENGLISH LAW