SOURCES AND VARIETIES OF ENGLISH LAWUnit 2

Preview1. Source of law2. English law3. Common law: history4. Common law vs. Civil law4. Equity: history5. Statute law: history6. EU law: sources7. Legal terms8. Exercises

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

Great BritainEngland, Scotland and Wales1536 Wales united with England 1707 Scotland united with the Treaty of Union

The United Kingdom1800 Act of Union uniting politically Great Britain and Ireland: United Kingdom of Great Britain and Ireland1922 Irish Free State1927 the name United Kingdom of Great Britain and Northern Ireland adopted by act of Parliament (UK)

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

Sources of English lawCommon law(Equity)Statute lawEU law

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

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)

William the Conqueror (1027?-87)1066 Battle of HastingsEstablished Curia Regis (Kings Court) an instrument to govern the country and a court for deciding disputesLegislative, judicial and executive capacities

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

Henry IIBy the Grace of God, King of the English and Duke of the Normans and Aquitanians and Count of the Angevins

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

Henry II and the English Legal RenaissanceInstitutionalized common law by creating a unified system of law common to the countryThe central royal court whose decisions provided precedents to be followed in the future

Henry II and the English Legal RenaissanceJudicial functions = legislative functionsEstablished Royal Magistrate courts to adjudicate in local disputesIntroduced a jury system (witnesses of an event); trial by jury

The juryUnder 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

The juryVox populi took place of the vox dei that was used in ordeals14c. jurors began to take on the role they have today of trying evidenceThe trial of the fact: separated from the application of the law

Henry II18 judges: 5 remained in London and took over the Kings 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

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

Royal judges

Judging cases in the same manner using the same law important for the development of common law13th c. royal judges became professional judges and no longer politicians

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

From time immemorialIn reign of Edward I (1272-1307) Parliament decided that legal memory should run from the date of Henrys death (1189)Courts would take no account of any legal transactions which had taken place before it

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

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

Common LawThe 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 LouisianaThe most influential modern civil code Napoleonic Code (egalitarian ideals of the French Revolution; the law should be accessible to all)

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

Common Law = Judge-Made LawThere 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 Aladdins cave there is hidden the Common Law in all its splendour and that on a judges appointment there descends on him knowledge of the magic words Open Sesame. ..

Common law- judge-made lawBad 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: Definition1. fairness, impartiality2. the body of principles constituting what is fair and right; natural law

Equity3. the recourse to principles of justice to correct or supplement the law as applied to particular circumstances4. The system of law or body of principles originating in the English Court of Chancery

Equity: HistoryNo hierarchy of courtsDissatisfied litigants could only petition the King in person (judicial function)Judicial functions delegated to Lord Chancellor, originally the Kings confessor and thus a keeper of the Kings conscience

Equity: HistoryThe 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 CourtsThe function of the Lord Chancellor: to ensure fairness and justice if it was not provided by a common law courtA system of chancery courts developed that administered equityCourts of common law often in conflict with chancery courts

Court of ChanceryConditions a person seeking justice had to meet:1) he had to show that he could not receive justice in the common law courts2) 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

Equity and Common LawAt first no rules of equity; entirely based on Lord Chancellors conscienceGradually equity evolved rules of its own, became closer to common law1873 The Judicature Act merged common law and equity

Statute LawOriginally created by the monarchBy 13th c. gradually made through royal orders in response to petitions from the ParliamentParliament became the legislating authority because of its growing power against the monarch

Modern StatutesModern statutes 19th and 20th c. developmentStatutes Acts of Parliament, created after a bill has been accepted by both Houses of the Parliament and signed by the monarchSupreme over all other forms of domestic law

Statute law vs. Common lawJudges interpret statutes and thus create new precedentsInterpretation: 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 vehicleOn 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 LawPrimary: the Treaties Secondary: 1. Regulations binding in their entirety and directly applicable in all the Member States2. Decisions: binding on those to whom they are addressed3. Directives: binding upon each Member State to which they are addressed; methods left to the Member States

Legal termsZakonLawstatuteAct of Parliament (bill=prijedlog zakona)Legislation (= zakonodavstvo; zakoni)

Legal termsEquity= pravinost; pravosudni sustav koji stvaraju suci (razliit od common law), a zasniva se na naelu pravinostiLegal remedyPravni lijek

Legal termsCommon lawA general system of law deriving exclusively from court decisionsEnglesko ope pravo (ne postoje propisani izvori prava), pravo koje ne potjee od zakonodavnih tijela ve sudsko pravo, precedentno pravo; pravo iji je primarni izvor u sudskim presudama

Legal termsPrecedentA judgement or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases

Legal termsPublic lawThe 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

Legal terms: Public lawConstitutional lawAdministrative lawTax lawCriminal law

Legal terms: public civil law= javno graansko pravo Constitutional law= ustavno pravoAdministrative law= upravno pravoRevenue law= financijsko pravo

Private civil law= privatno graansko pravoLaw of contract= ugovorno pravo, obvezno pravoLaw of tort= odtetno pravoFamily law= obiteljsko pravo

Legal termsContract= ugovorTreaty= meunarodni ugovor

Legal termsSubstantive law= materijalno pravo, pozitivno pravoProcedural law= procesno pravo, postupovno pravo

The sources of lawExerciseMatch these sources of law with the descriptions below:Common lawNapoleonic CodeRoman lawThe Ten Commandments

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.

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.

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

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.

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

Additional sourcesUK case reports: www.courtservice.gov.ukwww.lawreports.co.ukUK Parliament and legislative process: www.parliament.ukLegislation around the world:www.lexadin.nl/wlg/legis/nofr/legis.htm