Sources and Varieties of English Law09[1]

7/26/2019 Sources and Varieties of English Law09[1]

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SOURCES ANDSOURCES AND

VARIETIES OF ENGLISHVARIETIES OF ENGLISHLAWLAWUnit 2Unit 2


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Source of lawSource of law

(fons iuris(fons iuris

Something (such as a constitution,Something (such as a constitution,treaty, statute, or custom) thattreaty, statute, or custom) thatprovides authority for legislation andprovides authority for legislation andfor judicial decisionsfor judicial decisions

A point of origin for law or legalA point of origin for law or legalanalysisanalysis


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T!e sources of lawT!e sources of law

E"erciseE"ercise

Match these sources of law with theMatch these sources of law with thedescriptions belowdescriptions below

!ommon law!ommon law "apoleonic !ode"apoleonic !ode #oman law#oman law

$he $en !ommandments$he $en !ommandments


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E"ercise (con#$E"ercise (con#$

%%%%%, which evolved in the &th century '!,%%%%%, which evolved in the &th century '!,was still largely a blend of custom andwas still largely a blend of custom andinterpretation by magistrates of the will ofinterpretation by magistrates of the will of

the godsthe gods %%%%%formed the basis of all sraelite%%%%%formed the basis of all sraelite

legislation $hey can also be found in thelegislation $hey can also be found in thelaws of other ancient peopleslaws of other ancient peoples

%%%%%refers to the entire body of *rench%%%%%refers to the entire body of *renchlaw, contained in +ve codes dealing withlaw, contained in +ve codes dealing withcivil, commercial, and criminal lawcivil, commercial, and criminal law


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E"ercise (con#$E"ercise (con#$

%%%%%%evolved from the tribal and local%%%%%%evolved from the tribal and locallaws in ngland t began with commonlaws in ngland t began with commoncustoms, but over time it involved thecustoms, but over time it involved the

courts in law-ma.ing that was responsivecourts in law-ma.ing that was responsiveto changes in society n this way theto changes in society n this way theAnglo-"orman rulers created a system ofAnglo-"orman rulers created a system ofcentrali/ed courts that operated under acentrali/ed courts that operated under asingle set of laws that replaced the rulessingle set of laws that replaced the ruleslaid down by earlier societieslaid down by earlier societies


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E%ERCISE &E%ERCISE &

Are the following sentences aboutAre the following sentences aboutthe sources of law true or false0the sources of law true or false0

1 $he $en !ommandments are1 $he $en !ommandments arebased on moral standards ofbased on moral standards ofbehaviourbehaviour


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True or false'True or false'

2 n common law, judges resolve2 n common law, judges resolvedisputes by referring to statutorydisputes by referring to statutoryprinciples arrived at in advanceprinciples arrived at in advance

#oman law is based on the #oman law is based on theprinciple of deciding cases byprinciple of deciding cases byreference to previous judicialreference to previous judicial

decisions, rather than to writtendecisions, rather than to writtenstatutes draftred by legislativestatutes draftred by legislativebodiesbodies


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True or false'True or false'

$he "apoleonic !ode was introduced$he "apoleonic !ode was introducedinto a number of uropean countries,into a number of uropean countries,notably 'elgium, where it is still innotably 'elgium, where it is still inforce t also became the model forforce t also became the model forthe civil codes of 3uebec 4rovince inthe civil codes of 3uebec 4rovince in!anada, the "etherlands, taly,!anada, the "etherlands, taly,

Spain, some 5atin AmericanSpain, some 5atin Americanrepublics, and the state of 5ouisianarepublics, and the state of 5ouisiana


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Grea# ri#ainGrea# ri#ain

ngland, Scotland and 6alesngland, Scotland and 6ales 178 6ales united with ngland178 6ales united with ngland

19:9 Scotland united with the $reaty19:9 Scotland united with the $reatyof Unionof Union


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T!e Uni#e) *in+)o,T!e Uni#e) *in+)o,

1ominion1ominionStatus to 28 rish counties under theStatus to 28 rish counties under thename of rish *ree State? the newname of rish *ree State? the newstate continued in association withstate continued in association withthe 'ritish !ommonwealththe 'ritish !ommonwealth

1& April 1


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En+lis! lawEn+lis! law

$he law of ngland, 6ales and$he law of ngland, 6ales and"orthern reland very similar? the"orthern reland very similar? theScots law Buite diCerentScots law Buite diCerent

$he separate evolution of the two$he separate evolution of the twolegal systems, both before and afterlegal systems, both before and afterthe Union, has resulted in diCerentthe Union, has resulted in diCerent

principles, institutions and traditionsprinciples, institutions and traditions Scots law based on #oman lawScots law based on #oman law


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His#or- of En+lis! law.His#or- of En+lis! law.

T!e /re0Nor,an /erio) (1efore 2344T!e /re0Nor,an /erio) (1efore 2344

'ased on ancient customs and'ased on ancient customs andtraditionstraditions

Medieval states and their legalMedieval states and their legalsystems fragmentedsystems fragmented

5ocal customs varied from5ocal customs varied fromcommunity to community and werecommunity to community and wereenforced in a very arbitrary fashionenforced in a very arbitrary fashion


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T!e /re0Nor,an /erio) (1eforeT!e /re0Nor,an /erio) (1efore

23442344

!ourts informal public assemblies!ourts informal public assembliesthat considered conDicting claims inthat considered conDicting claims ina case? trial by ordeal (eg snatchinga case? trial by ordeal (eg snatchinga stone from a boiling water ora stone from a boiling water orcarrying a red-hot iron)? trial bycarrying a red-hot iron)? trial bybattle (legal until 1&1


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T!e Rei+n of Henr- IIT!e Rei+n of Henr- II

(2256078(2256078

117@ Eenry became the +rst117@ Eenry became the +rst4lantagenet .ing4lantagenet .ing

*irst ruler powerful enough to*irst ruler powerful enough tocentrali/e the country and its lawscentrali/e the country and its lawsagainst the opposition of local baronsagainst the opposition of local barons


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Henr- IIHenr- II

By the Grace of God, King of theBy the Grace of God, King of the

EnglishEnglish

and Duke of the Normans andand Duke of the Normans and

AquitaniansAquitaniansand Count of the Angevinsand Count of the Angevins
http://www.newworldencyclopedia.org/entry/Image:Henry_II_of_England.jpghttp://www.newworldencyclopedia.org/entry/Image:Henry_II_of_England.jpghttp://www.newworldencyclopedia.org/entry/Image:Henry_II_of_England.jpghttp://www.newworldencyclopedia.org/entry/Image:Henry_II_of_England.jpghttp://www.newworldencyclopedia.org/entry/Image:Henry_II_of_England.jpg


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T!e Rei+n of Henr- IIT!e Rei+n of Henr- II

(2256078(2256078

=ing of ngland, >u.e of "ormandy,=ing of ngland, >u.e of "ormandy,the ruler of all western *rancethe ruler of all western *rance

Medieval ngland a polyglotMedieval ngland a polyglotcommunity (nglish, *rench, 5atin,community (nglish, *rench, 5atin,;aelic);aelic)


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Henr- II an) #!e En+lis! Le+alHenr- II an) #!e En+lis! Le+al

RenaissanceRenaissance

nstitutionali/ed common law bynstitutionali/ed common law bycreating a uni+ed system of lawcreating a uni+ed system of lawcommon to the countrycommon to the country

$he central royal court whose$he central royal court whosedecisions provided precedents to bedecisions provided precedents to befollowed in the futurefollowed in the future


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Henr- II an) #!e En+lis! Le+alHenr- II an) #!e En+lis! Le+al

RenaissanceRenaissance

Fudicial functions G legislativeFudicial functions G legislativefunctionsfunctions

stablished #oyal Magistratestablished #oyal Magistratecourts to adjudicate in localcourts to adjudicate in localdisputesdisputes

ntroduced a jury systemntroduced a jury system(witnesses of an event)? trial by(witnesses of an event)? trial byjuryjury


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Sources of En+lis! lawSources of En+lis! law

!ommon law!ommon law (Buity)(Buity)

Statute lawStatute law U lawU law


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Co,,on Law. Defini#ionCo,,on Law. Defini#ion

$he body of law derived from$he body of law derived fromjudicial decisions, rather thanjudicial decisions, rather than

from statutes or constitutions? afrom statutes or constitutions? anative product of 'ritain (Hjudge-native product of 'ritain (Hjudge-made lawI)made lawI)


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Co,,on LawCo,,on Law

$he legal system of Australia,$he legal system of Australia,!anada (eJcept 3uebec), ngland!anada (eJcept 3uebec), nglandand 6ales, ;hana, Eong =ong, ndia,and 6ales, ;hana, Eong =ong, ndia,

Famaica, Malaysia, "ew Kealand,Famaica, Malaysia, "ew Kealand,4a.istan, the #epublic of reland,4a.istan, the #epublic of reland,Singapore, Sri 5an.a, $an/ania, theSingapore, Sri 5an.a, $an/ania, the

USA (eJcept 5ouisiana), theUSA (eJcept 5ouisiana), the'ahamas, Kambia'ahamas, Kambia


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Ci9il Law. Defini#ionCi9il Law. Defini#ion

(ius ci9ile : law of #!e s#a#e(ius ci9ile : law of #!e s#a#e

Lne of the two prominent legalLne of the two prominent legalsystems in the 6estern 6orld,systems in the 6estern 6orld,originally adminstered in the #omanoriginally adminstered in the #oman

mpire and still inDuential inmpire and still inDuential incontinental urope, 5atin America,continental urope, 5atin America,Scotland, and 5ouisianaScotland, and 5ouisiana

$he most inDuential modern civil code$he most inDuential modern civil code "apoleonic !ode (egalitarian ideals "apoleonic !ode (egalitarian idealsof the *rench #evolution? the lawof the *rench #evolution? the lawshould be accessible to all)should be accessible to all)


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T!e Co,,on Law an) #!e Ci9ilT!e Co,,on Law an) #!e Ci9il

LawLaw

!ommon law unwritten G unenacted!ommon law unwritten G unenacted(Gnot passed by the 4arliament, but(Gnot passed by the 4arliament, butcreated by courts)? inductivecreated by courts)? inductive

principleprinciple !ivil law written G enacted (G!ivil law written G enacted (G

passed by the 4arliament)? deductivepassed by the 4arliament)? deductive

principleprinciple


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Co,,on Law : ;u)+e0


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Co,,on law0 =u)+e0,a)e lawCo,,on law0 =u)+e0,a)e law

'ad decisions are given when the'ad decisions are given when thejudge has muddled the password andjudge has muddled the password andthe wrong door opens 'ut we do notthe wrong door opens 'ut we do not

believe in fairy tales any more So webelieve in fairy tales any more So wemust accept the fact that for bettermust accept the fact that for betteror worse judges do ma.e law, andor worse judges do ma.e law, and

tac.le the Buestion how do theytac.le the Buestion how do theyapproach their tas. and how shouldapproach their tas. and how shouldthey approach itN (' !ardo/o, 1


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E>ui#-. Defini#ionE>ui#-. Defini#ion

1 fairness, impartiality1 fairness, impartiality 2 the body of principles constituting2 the body of principles constituting

what is fair and right? natural lawwhat is fair and right? natural law


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E>ui#-E>ui#-

the recourse to principles of justice the recourse to principles of justiceto correct or supplement the law asto correct or supplement the law asapplied to particular circumstancesapplied to particular circumstances

@ $he system of law or body of@ $he system of law or body ofprinciples originating in the nglishprinciples originating in the nglish!ourt of !hancery!ourt of !hancery


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E>ui#-. His#or-E>ui#-. His#or-

"o hierarchy of courts"o hierarchy of courts >issatis+ed litigants could only>issatis+ed litigants could only

petition the =ing in person (judicialpetition the =ing in person (judicialfunction)function)

Fudicial functions delegated to 5ordFudicial functions delegated to 5ord!hancellor, originally the =ingIs!hancellor, originally the =ingIsconfessor and thus a .eeper of theconfessor and thus a .eeper of the=ingIs conscienceN=ingIs conscienceN


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E>ui#-. His#or-E>ui#-. His#or-

$he function of the 5ord$he function of the 5ord!hancellor evolved into that of!hancellor evolved into that of

the highest judgethe highest judge$homas More (1@9&-177) - the$homas More (1@9&-177) - the

+rst lawyer by profession to hold+rst lawyer by profession to hold

that functionthat function


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Lor) C!ancellor an) C!ancer-Lor) C!ancellor an) C!ancer-

Cour#sCour#s

$he function of the 5ord !hancellor$he function of the 5ord !hancellorto ensure fairness and justice if itto ensure fairness and justice if itwas not provided by a common lawwas not provided by a common law

courtcourt A system of chancery courtsA system of chancery courts

developed that administered eBuitydeveloped that administered eBuity !ourts of common law often in!ourts of common law often in

conDict with chancery courtsconDict with chancery courts


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E>ui#- an) Co,,on LawE>ui#- an) Co,,on Law

At +rst no rules of eBuity? entirelyAt +rst no rules of eBuity? entirelybased on 5ord !hancellorIsbased on 5ord !hancellorIsconscienceconscience

;radually eBuity evolved rules of its;radually eBuity evolved rules of itsown, became closer to common lawown, became closer to common law

1&9 fused with common law1&9 fused with common law


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S#a#u#e LawS#a#u#e Law

Lriginally created by the monarchLriginally created by the monarch 'y 1th c gradually made through'y 1th c gradually made through

royal orders in response to petitionsroyal orders in response to petitionsfrom the 4arliamentfrom the 4arliament

4arliament became the legislating4arliament became the legislatingauthority because of its growingauthority because of its growingpower against the monarchpower against the monarch


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S#a#u#e law 9s$ Co,,on lawS#a#u#e law 9s$ Co,,on law

Fudges interpret statutes and thusFudges interpret statutes and thuscreate new precedentscreate new precedents

nterpretation literal meaning ornterpretation literal meaning orpurpose0purpose0


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Sources of EU LawSources of EU Law

PrimaryPrimary the $reaties the $reaties SecondarySecondary 1 #egulations binding in their entirety and1 #egulations binding in their entirety and

directly applicable in all the Member Statesdirectly applicable in all the Member States 2 >ecisions binding on those to whom2 >ecisions binding on those to whom

they are addressedthey are addressed

>irectives binding upon each Member >irectives binding upon each MemberState to which they are addressed? methodsState to which they are addressed? methodsleft to the Member Statesleft to the Member States


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Ca#e+ories of lawCa#e+ories of law

4ublic law4ublic law 4rivate law4rivate law


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@u1lic law@u1lic law

$he body of law dealing with the$he body of law dealing with therelations between privaterelations between private

individuals and the government,individuals and the government,and with the structure andand with the structure andoperation of the governmentoperation of the government

itselfitself


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@u1lic law@u1lic law

1 !ivil law (constitutional law,1 !ivil law (constitutional law,administrative law, revenue law)?administrative law, revenue law)?

2 !riminal law2 !riminal law


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@ri9a#e law@ri9a#e law

$he body of law dealing with private$he body of law dealing with privatepersons and their property andpersons and their property andrelationshipsrelationships

contract, tort (Hnoncriminal breach ofcontract, tort (Hnoncriminal breach ofa duty imposed by law that gives thea duty imposed by law that gives theright of action for damagesI)right of action for damagesI)


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T!e su1=ec# ,a##er of #!e le+alT!e su1=ec# ,a##er of #!e le+al

s-s#e,. e"ercises-s#e,. e"ercise

Lne way of classifying andLne way of classifying andunderstanding the law is by subjectunderstanding the law is by subjectmatter 5awyers usually divide thematter 5awyers usually divide the

law and the legal system into twolaw and the legal system into twocriminal law and civil lawcriminal law and civil law


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E"erciseE"ercise

!lassify the following terms into criminal!lassify the following terms into criminalor civil $wo terms can sometimes belongor civil $wo terms can sometimes belongto bothto both compensation, contract,compensation, contract,

crime, damages, family law,crime, damages, family law,intellectual property, plaintiintellectual property, plainti(claimant), police, private individual,(claimant), police, private individual,prosecution, the accused, theprosecution, the accused, thedefendant, theft, to bring a case, todefendant, theft, to bring a case, tobring an action, to ne, to chargebring an action, to ne, to chargesomeone with somethingsomeone with something


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*e-*e-

CriminalCriminal to charge someone with to charge someone withsomething, crime, police, prosecution,something, crime, police, prosecution,the accused, the defendant, theft, tothe accused, the defendant, theft, to

bring a case, to +nebring a case, to +ne Civil:Civil:plaintiC, compensation,plaintiC, compensation,

contract, damages, family law,contract, damages, family law,

intellectual property, privateintellectual property, privateindividual, the defendant, to bring aindividual, the defendant, to bring acase, to bring an actioncase, to bring an action


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Le+al #er,sLe+al #er,s

Ka.onKa.on 5aw5aw

statutestatute Act of 4arliament (billGprijedlogAct of 4arliament (billGprijedlog

/a.ona)/a.ona)

5egislation (G /a.onodavstvo?5egislation (G /a.onodavstvo?/a.oni)/a.oni)

L l 1li i il l


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Le+al #er,s. /u1lic ci9il lawLe+al #er,s. /u1lic ci9il law

: =a9no +raansBo /ra9o: =a9no +raansBo /ra9o

!onstitutional law!onstitutional law

G ustavno pravoG ustavno pravo

Administrative lawAdministrative lawG upravno pravoG upravno pravo

#evenue law#evenue law

G +nancijs.o pravoG +nancijs.o pravo

@ i # i il l


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@ri9a#e ci9il law@ri9a#e ci9il law

: /ri9a#no +raansBo /ra9o: /ri9a#no +raansBo /ra9o

5aw of contract5aw of contract G ugovorno pravo, obve/no pravoG ugovorno pravo, obve/no pravo

5aw of tort5aw of tort G odPtetno pravoG odPtetno pravo *amily law*amily law

G obiteljs.o pravoG obiteljs.o pravo


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!ontract!ontract G ugovorG ugovor

$reaty$reaty G meQunarodni ugovorG meQunarodni ugovor


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Substantive lawSubstantive law G materijalno pravo, po/itivno pravoG materijalno pravo, po/itivno pravo

4rocedural law4rocedural law G procesno pravo, postupovno pravoG procesno pravo, postupovno pravo


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A))i#ional sourcesA))i#ional sources

U= case reportsU= case reports wwwcourtservicegovu.wwwcourtservicegovu. wwwlawreportscou.wwwlawreportscou. U= 4arliament and legislative processU= 4arliament and legislative process wwwparliamentu.wwwparliamentu. 5egislation around the world5egislation around the world wwwleJadinnlRwlgRlegisRnofrRlegishtmwwwleJadinnlRwlgRlegisRnofrRlegishtm
http://www.courtservice.gov.uk/http://www.courtservice.gov.uk/http://www.lawreports.co.uk/http://www.lawreports.co.uk/http://www.parliament.uk/http://www.parliament.uk/http://www.parliament.uk/http://www.lawreports.co.uk/http://www.courtservice.gov.uk/

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Sources and Varieties of English Law09[1]