SOURCES AND VARIETIES OF ENGLISH LAW

1. SOURCES AND VARIETIES OF ENGLISH LAW Unit 2

2. Preview 1. Source of law 2. English law 3. Common law: history 4. Common law vs. Civil law 4. Equity: history 5. Statute law: history 6. EU law: sources 7. Legal terms 8. Exercises

3. 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

4. Great Britain England, Scotland and Wales 1536 Wales united with England 1707 Scotland united with the Treaty of Union

5. The United Kingdom 1800 Act of Union uniting politically Great Britain and Ireland: United Kingdom of Great Britain and Ireland 1922 Irish Free State 1927 the name United Kingdom of Great Britain and Northern Ireland adopted by act of Parliament (UK)

6. 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

7. Sources of English law Common law (Equity) Statute law EU law

8. 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

9. The pre-Norman period (before 1066) Courts – informal public assemblies that considered conflicting claims in a case; trial by ordeal (e.g. snatching a stone from a boiling water or carrying a red-hot iron); trial by battle (legal until 1819)

10. William the Conqueror (1027?-87) 1066 Battle of Hastings Established Curia Regis (King’s Court) – an instrument to govern the country and a court for deciding disputes Legislative, judicial and executive capacities

11. The Royal Courts

13. 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

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

15. 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)

16. 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

17. 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

18. The jury Under oath they were to giva a true statement which was referred to as a “verdict” (veredictum) They swore to tell the turth: jurors (juratores), meaning a person who has been sworn

19. The jury Vox populi took place of the vox dei that was used in ordeals 14c. jurors began to take on the role they have today of trying evidence The trial of the fact: separated from the application of the law

20. Henry II 18 judges: 5 remained in London and took over the King’s task of deciding cases (Westminster) remaining judges – sent out on circuits to travel the country – had to apply the laws that had been made by the judges at Westminster: local laws replaced by national laws that would apply to all: common law

21. The Royal Courts (Westminster) The Court of Exchequer (taxes) The Bench of Common Pleas (litigation between private individuals) The King’s Bench (pleas the Crown as opposed to common pleas: King’s duty to protect the peace)

22. Royal judges Judging cases in the same manner using the same law – important for the development of common law 13th c. royal judges became professional judges and no longer politicians

23. Judicature Act 1873 The three courts were abolished and their jurisdiction was transfered to a single High Court, with separate functional divisions

24. “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

25. 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

26. 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’)

27. 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

29. 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)

30. The Common Law and the Civil Law Common law: unwritten = unenacted (=not passed by the Parliament, but created by courts); inductive principle Civil law: written = enacted (= passed by the Parliament); deductive principle

31. 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. ..

32. 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)

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

34. 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

35. Equity: History No hierarchy of courts Dissatisfied litigants could only petition the King in person (judicial function) Judicial functions – delegated to Lord Chancellor, originally the King’s confessor and thus “a keeper of the King’s conscience”

36. 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

37. 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

38. Court of Chancery Conditions a person seeking justice had to meet: 1) he had to show that he could not receive justice in the common law courts 2) had to show that he was without blame (‘coming to court with clean hands’) Had to show he had not delayed in bringing the case before the court

39. 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

40. 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

41. 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

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

43. 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...”

44. 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

45. 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

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

47. Legal terms Equity= pravicnost; pravosudni sustav koji stvaraju suci (razlicit od common law), a zasniva se na nacelu pravicnosti Legal remedy Pravni lijek

48. Legal terms Common law A general system of law deriving exclusively from court decisions Englesko opce pravo (ne postoje propisani izvori prava), pravo koje ne potjece od zakonodavnih tijela vec sudsko pravo, precedentno pravo; pravo ciji je primarni izvor u sudskim presudama

49. Legal terms Precedent A judgement or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases

50. Legal terms Public law The part of law that deals with the constitution and functions of the organs of central and local government, the realtionship between individuals and the state, and relationships between individuals that are of direct concern to the state

51. Legal terms: Public law Constitutional law Administrative law Tax law Criminal law

52. Legal terms: public civil law= javno gradansko pravo Constitutional law = ustavno pravo Administrative law = upravno pravo Revenue law = financijsko pravo

53. Private civil law= privatno gradansko pravo Law of contract = ugovorno pravo, obvezno pravo Law of tort = odštetno pravo Family law = obiteljsko pravo

54. Legal terms Contract = ugovor Treaty = medunarodni ugovor

55. Legal terms Substantive law = materijalno pravo, pozitivno pravo Procedural law = procesno pravo, postupovno pravo

56. The sources of lawExercise Match these sources of law with the descriptions below: Common law Napoleonic Code Roman law The Ten Commandments

57. Exercise (cont.) _____, which evolved in the 8th century BC, was still largely a blend of custom and interpretation by magistrates of the will of the gods. _____formed the basis of all Israelite legislation. They can also be found in the laws of other ancient peoples. _____refers to the entire body of French law, contained in five codes dealing with civil, commercial, and criminal law.

58. Exercise (cont.) ______evolved from the tribal and local laws in England. It began with common customs, but over time it involved the courts in law-making that was responsive to changes in society. In this way the Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that replaced the rules laid down by earlier societies.

59. EXERCISE 2 Are the following sentences about the sources of law true or false? 1. The Ten Commandments are based on moral standards of behaviour.

60. True or false? 2. In common law, judges resolve disputes by referring to statutory principles arrived at in advance. 3. Roman law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes draftred by legislative bodies.

61. True or false? The Napoleonic Code was introduced into a number of European countries, notably Belgium, where it is still in force. It also became the model for the civil codes of Quebec Province in Canada, the Netherlands, Italy, Spain, some Latin American republics, and the state of Louisiana

62. Additional sources UK case reports: www.courtservice.gov.uk www.lawreports.co.uk UK Parliament and legislative process: www.parliament.uk Legislation around the world: www.lexadin.nl/wlg/legis/nofr/legis.htm