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British Institutions LICENCE DROIT 1ère ANNÉE FACULTE DE DROIT UNIVERSITÉ DE MONTPELLIER BRITISH INSTITUTIONS TITLE I / THE COMMON LAW Section A / Definition Section B / History Section C / Bringing an action at Common Law Section D / The Rule of Precedent (Stare Decisis) Section E / Law Reports Section F / Ratio Decidendi and Obiter Dicta Section G / The hierarchy of the Courts Section H / A decision can cease to be binding Section I / Advantages and disadvantages of the doctrine of Precedent TITLE II / EQUITY Section A / Definition Section B / The maxims of Equity Section C / Conflict between Equity and the Common Law Section D / Remedies of Equity Section E / Different types of injunctions TITLE III / STATUTE LAW Section A / From a Bill to an A ct of Parliament Section B / The validity of a Statute Section C / Delegated legislation Section D / Public Bills and Private Bills Section E / First, Second and Third Readings and Royal assent 1 Section F / Statutory interpretation Section G / Parliamentary Sovereignty and the European Union TITLE IV / THE BRITISH INSTITUTIONS Section A / The British constitution. Section B / The monarchy Paragraph 1 / Historical outline Paragraph 2 / Functions of the Monarchy Section C / The British Parliament. Paragraph 1 / The House of Lords. Paragraph 2 / The House of Commons. Paragraph 3 / The legislative process. TITLE V / DEVOLUTION 2 TITLE I / THE COMMON LAW Since we are dealing with the legal system of England and of some of the countries which were influenced by that system, we must know how to use the name by which it is designated - the COMMON LAW. The term "common law" is used in various ways : according to the context, the different meanings may be represented in table form : • Common Law v local laws • Common Law v Equity • Common law v Statute • Common law v other systems of law In meaning n° 1, we refer to the fact that the common law of England was developed after the Norman Conquest (1066); until this date, the law was administered according to Anglo-Saxon customs and varied locally. The royal courts of the Norman kings developed rules, derived from the best of those local customs, which then became applicable to the whole country, the law became COMMON to the whole country. In meaning n° 2, we use the word in contrast to the law of equity. As the common law in n° became firmly established, its strict rules of proof resulted sometimes in injustice - in order to remedy such injustices, the law of equity, relying on principles of conscience, was developed and administered in separate courts - the courts of Chancery. The two systems were unified in 1873-1875. Equity law served when the common law was inadequate; it added to the common law and did not exist alone. The common law provided only damages, a financial compensation. Equity introduced such remedies as specific performance, rescission and injunction. In meaning n°3, we refer to the fact that n°1 and n°2 were based on judicial decisions handed down by the courts (these decisions form what is called case law), as opposed to legislation coming from parliament, which is known as statute law. In meaning n°4, which includes meanings 1, 2 and 3, we distinguish between the system in effect in England and those countries which came under the influence of the English system, like Australia, the U.S.A. and Canada, and other legal systems, such as the Chinese one or the Muslim one or those found in European countries, which owe so much to the Roman civil law. SECTION A / DEFINITION : It had long been called Secular Law in opposition to Canon Law (i. e. - the clergy). It was described as the common sense of the community. Blackstone (1765) divided English Law into two categories : written law : Statute Law unwritten law :Common Law (Equity is complementary to Common Law). The word Common Law was used for the first time at the end of the 13th century. Justice, usually called the Courts of Westminster, after the name of the place where they sat. 3 SECTION B / HISTORY Until and for some time after the Norman Conquest In 1066, it could scarcely be said that there was such a thing as English Law. There did exist a primitive legal system : the country was divided into Shires (called Counties after the Conquest) which were in turn subdivided into areas called Hundreds. Each Shire and Hundred would have its own court in which for the most part local custom would be applied to any legal dispute. The Norman Conquest itself made little immediate impact upon English Law. However, the Normans, over the following 200 years, greatly increased control over the administration of the law. The King's Court (Curia Regis) settled legal disputes. Central courts developed, Three such courts came into existence and remained permanently In Westminster : • The Court of Exchequer : it originally heard disputes arising out of taxation and later acquired a wider civil jurisdiction. • The Court of Common Pleas : it dealt with various types of civil disputes between private individuals. • The Court of King's Bench : it became the most important court dealing with civil and criminal cases and acquired some supervisory powers over the other courts. Very soon this division of jurisdiction disappeared and each of the three courts at Westminster could hear any of the disputes brought before the Royal Courts. Apart from these three categories of courts, all other disputes were settled by the Hundred or County courts, feudal courts, ecclesiastical courts and later by different commercial jurisdictions (which applied the international customary law of commerce, the Lex mercatoria or ley merchant). SECTION C / BRINGING AN ACTION AT COMMON LAW To submit a claim to the Royal Court was not a right of even/ private individual : it was a favour that had to be requested and the royal authority only granted it after deliberation. The method of starting an action at Common Law was by way of the original writ. It was a document, obtained on payment of a fee, from the administrative offices of the chancery. It was to secure the presence of the defendant before the royal courts. Each writ contained a brief statement of the plaintiffs grounds of claim. The writ was not simply the plaintiffs authorization to act : it was an order given by the King commanding his officers to order the defendant according to the law by satisfying the claim of the plaintiff. if the defendant refused to obey the order. the action of the plaintiff would be justified not so much because of the opposition made to his pretentions but because of the defendant's disobedience of an order of the administration. The number of brevia de cursu (list of writs) increased little by little. In 1227, there were only 56 writs enabling a plaintiff to obtain a remedy in 56 different situations. If none of the writs corresponded to the wrong suffered by the plaintiff, he was left without a remedy. If the wrong writ was chosen, the action failed, and the plaintiff had to start from the beginning again ... if the client had the patience … and the money. To remedy the situation which soon became intolerable, the courts began granting new writs. But the development of new writs was slow and cautious. Nowadays, a civil action starts 4 with the delivering of a judicial writ of summons (original writs having been abolished). The rigour of the Common Law procedures and the need to conform to a traditional framework were the main reasons preventing the reception of Roman legal concepts in England. The complexity and technical nature of these procedures were also such that they could only be learnt through practice. A university training based on Roman law might very well be of some help for meditating upon the just solution for a dispute but it did not help win a trial. For British practitioners and judges a university training has not been either necessary or, for many centuries, even usual. SECTION D / THE RULE OF PRECEDENT (STARE DECISIS) The judges looked at previous decisions for guidance in order to maintain consistency in any future judgements; thus where judges were faced with similar facts, they would apply the same principles. There are probably two reasons for this : one psychological, the other practical. The psychological reason is that anyone who is called upon to decide a dispute will prefer to justify his decision, if possible, by reference to what has been done in the past, rather than take the entire responsibility himself. The practical reason is that it is clearly desirable that decisions be uniform and the law stable. Attitudes towards "Precedent", the weight to be given to previous decisions as evidence of law, or custom, varied from place to place and from time to time, as did the style and content of collections of reports. SECTION E / LAW REPORTS Decisions could be found in Law Reports. The earliest series in print is The Reports of Sir John Spelman, covering the period 1502-1540. 1275-1535 : The Year Books Compiled annually, written by hand by anonymous lawyers in Law French (mixture of Old French and English). 1535-1865 : The Private Reports Compiled by individuals for commercial publications. Since 1865 : Decisions have been published under the control of what is now called the Incorporated Council of Law Reporting for England and Wales. 1953 : The Weekly Law Reports : Daily newspapers (The Times, The Independent, The Guardian) summarise reports of certain cases of importance and interest. It is obvious that in every jurisdiction the character of law reporting was shaped by local procedure. There was a fundamental distinction between fact-finding and the application of the law to the facts, Questions of law only arose when lawyers wished to narrow the issue to be left to the jury, or where the jury chose to find particular facts and leave the outcome to the court.
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