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the origins of the English legal system, the first thing that we have to clarify is the notion of English law. The United Kingdom is made up of Great Britain and Northern Ireland. In turn, Great Britain includes England, Scotland and Wales. All of these countries had different bodies of law and various legal traditions and customs which co-existed or still co-exist. Only between England and Wales has a fusion of laws taken place, so the notions of “English law” and the “English legal system” cover the law and legal system in application in England and Wales. English law is made up of written laws, called statutes or Acts of Parliament and, mainly, of a huge amount of case-law, generally referred to as common law, even if it includes both common law and equity.
Common law did not exist at the time of the Norman Conquest. Before 1066, Anglo-Saxon law consisted in local customs applied by assemblies of free men, called county courts. Before William I conquered England, the country was socially atomized. There were local laws and institutions, which often reflected the customs and traditions of previous invading cultures, such as the Angles, Saxons, Jutes, Danes, etc. For instance, in Kent, the English region settled by the Jutes, the custom of intestate succession dictated that the land was to be divided equally amongst the sons, whereas elsewhere the land would be assigned to the eldest son. What is surprising is the fact that this Kentish custom survived as an anomaly of the law of intestate succession until the 1025 reforms. Yet, the Norman Conquest changed very little in terms of the local administration of local laws and customs. What the Norman Conquest brought new was the development of a legal principle, namely that tenure of land implied jurisdiction. In this way the feudal lords created their own feudal courts, presiding over the administration of their lands and those who worked then. These feudal courts were called baronial or manorial courts. By virtue of the hierarchical organization of the feudal society, courts were also subject to a hierarchy. What did that mean in practice? Well, it meant that the highest court was the King’s court because the King, as the owner of the land, was the one who gave land directly to the highest nobles of the realm called Tenants in Chief. In turn, the Tenants in chief gave land to the lower lords, so the King’s court had jurisdiction over the Tenants in Chief, while the tenants in Chief had jurisdiction over the other feudal lords. But these courts, too, applied local customary law. Parallel to the feudal courts, ecclesiastical courts were also created, where cases were settled by canon law, namely religious law common to all Christendom. William’s successors managed to make the system more efficient by creating a more centralized and specialized form of government. This was achieved in two ways: (i) by delegating the royal judicative power to itinerant justices, organized in circuits, who would travel around the country holding sittings
during a trial the current case will be compared to other cases and it will be distinguished from other cases referred to or it will be considered similar. when the peace of the kingdom was threatened). the Bahamas and Zambia. It is that part of the law of England formulated. based originally on the common customs and it is unwritten.(Assizes) to hear and settle cases to be tried in the county towns and enforce the king’s rights. Canada (except for Quebec). From this body of law has evolved the type of legal system found also in the United States (except for Louisiana) . Ghana. which in practice means that the decision of a higher court is binding in a lower court. the law created by this jurisdiction came to be known as common law (common to the whole of England). resting upon judicial decisions and embodied in reports of decided cases. that is relevant or pertinent. the more so as forfeitures. It is the body of customary law. Thus. which derives their authority solely from customs or from the judgments and decrees issued by the courts. Later on. These were the Court of the Exchequer. developed and administered by the old common law courts. (ii) three static royal courts of justice (Curia Regis) were created. It is the law administered by the common-law courts of England since the Middle Ages. Common law is to be distinguished from the law created by the enactment of the legislative bodies. Pakistan. The jurisdiction of these courts was extended until it became common to the whole kingdom. Jamaica. In this sense. a decision made by a court of equal or greater status must be applied if it is to the point. relating to the government and security of persons of property. The first of these circuits were designed to raise royal revenue by enforcing the financial rights of the crown and by “causing justice to be done”. Nevertheless. that is the decision must be followed and in the course of a trial judges may refer to existing precedents. it was a court for important personalities and important disputes (eg. common law is based on the above-mentioned hierarchy of the in all the jurisdictions and the principle of binding precedent. as opposed to Acts of Parliament. Therefore. the same judges sat at Westminster as sat on the Assizes. but they are not bound to follow them. Judges may also consider decisions given in lower courts. Hong Kong. except that within the jurisdiction of the Exchequer. Australia. Common law is also to be distinguished from ecclesiastical law. given its origins. located at Westminster. India. In other words. fines and amercements became an important source of royal revenue. so there was a high degree of uniformity in the decisions made in the static and itinerant courts. because it is the system of jurisprudence administered by the purely secular tribunals. namely it will be argued that the rule at law reasoned and established in a previous 2 . as disputes were normally brought before the feudal courts or the ecclesiastical courts. Malaysia. the royal court of justice had limited jurisdiction. specialized in the questions of royal finance (you can now understand why the British minister of finance is called the Chancellor of the Exchequer). In the 11th and 12th centuries. Tanzania. the Court of Common Pleas which had a wide first instance jurisdiction in ordinary litigation among subjects and the Court of King’s Bench which had an appellate and supervisory jurisdiction over all royal justice. It comprises the body of principles and rules of action. The King’s court only heard cases in exceptional circumstances. common law can be defined as the general law contained in decided cases. new Zealand.
namely the system of law developed from Roman law. to submit a claim to the royal courts. the claimant had to follow a very rigid procedure which was different for every writ. the royal courts of Westminster only heard cases submitted to them on the basis of the writs created in the 13th century. Yet. For instance. they only intervened in the name of morality. The King would delegate his powers to a Chancellor but neither of them intervened to create new rules of law. although they heard cases coming from all parts of the country. The common law thus created involved a very formalistic procedure. by appealing to his conscience. After obtaining a writ. as it was necessary that the case should correspond exactly to one on the list. The precedent is the rule of law which the first instance judge relied on in determining the outcome of the case. the “cancellarius” (from Latin “cancellus” which meant a bar) was an usher who served at the bar of a Roman court. common law (droit commun) refers to the law common to the whole area of the state as distinct from local or regional customs. a more illustrious form of this was to be found in the court of Charlemagne and was 3 . But until this solution was found the procedure was so rigid that an alternative solution to obtain justice had to be found. Hence the term case law. in 1227 there were only 56 writs. namely equity. already listed. Other meanings of common law • • • The whole law of England. When the royal courts applying the common law could not be seized of a case or could not provide an adequate remedy. to intervene as sovereign justiciar. These Acts established a uniform procedure for all ordinary actions. until the mid-19th century. If there was only a slight procedural mistake the case was dismissed or a nonsuit decision was issued. Nevertheless. which were above local problems and more impartial than the other courts. as distinct from that of all other countries In French and German law. writs were granted only for certain types of cases. those forms of action were abolished in 18731875 by Acts of Parliament called Acts of Judicature. • EQUITY Equity is a body of rules that evolved mainly in the 15th and 16th centuries to complete the common law system which had become insufficient and defective. Initially. Initially. The description of the general system of law within a national jurisdiction. The office of Chancellor (more recently Lord Chancellor) has an ancient history. it was possible to request the king. Later an. In this sense it is contrasted with the notion of ‘civil law’ jurisdiction. In the 12th and 13th centuries.case is applicable and should be followed. including ecclesiastical. The plaintiff had to request the Chancellor to deliver a writ by which the royal courts could be seized of the matter. as administered in England. but later on the list was augmented. What is important to notice is that the royal courts tried to unify the different local customs. maritime and mercantile law.
The rules applied by the Court of Chancery turned into law and became part of the law of the land. etc) to obtain a contract. but mostly by people who had failed to obtain justice in the common law courts.transported to England by the time of Edward the Confessor. As already stated. but this definition does not cover the meaning acquired by this concept. common law offered damages. so the Chancellor intervened against those who took unfair advantage of their dominant position (guardians. but the aggrieved party was much more interested in obtaining the actual performance of the contract. confessors. so the disappointed parties (litigants) petitioned the King. For instance. The common law theory of consent covered only physical violence and not moral coercion. in the Middle Ages the courts of common law failed to give redress in certain types of cases where redress was necessary. the Chancellor issued a “decree of specific performance” urging the execution of the contract. that is lacked the necessary legal solution to a case. could remedy these defects. equity obliged trustees to respect their agreement. it was not always possible to obtain justice in a common law court due to the greatness of one of the parties. equity means natural justice. Petitions might be presented for a variety of reasons. only the Chancellor. The word equity is derived from the Latin aequitas meaning leveling. Failure to obtain justice was mainly due to three causes: (i) the common law court was in some way defective. (ii) the only remedy that common law courts could usually supply was the award of damages. it is part of the law of England. Therefore. • Main applications of EQUITY The most important branches of equity are the law of trusts and the law of contracts. the Court of Chancery. (iii) even if the law was adequate to solve a case. As he was closely associated with the King. In every day language. who was one of the chief royal officials. being an important member of the King’s Council whose duty was to consider and adjudicate upon petitions addressed to the Council by subjects who sought justice from it as the body most close to the king. If the defendant did not obey. as the King was the ‘fountain of justice’ for extraordinary relief. equity was inspired by ideas of natural justice. but did not provide a means to have the trespasser stop. in the case of trespass. And. 4 . Through his Chancellor. Therefore. He was also closely associated with the administration of justice. but nowadays it is a particular branch of English law. What about the origins of equity? As stated above. he was sent to prison for “contempt of court”. the only remedy at common law was damages. the Chancellor was bound by neither the rules nor the procedures of the common law courts. The Lord Chancellor headed the royal secretariat (called the Chancery) and was responsible for the used and custody of the Great Seal of the Realm. the King set up a special court. as far as property matters were concerned. where he became the King’s right-hand man and the most powerful official in the realm. The chancellor intervened in equity and granted an injunction ordering the defendant to stop infringing on another’s property. In the case of a breach of contract. to deal with these petitions.
the former complementing the latter. At that time legislation was made by the King in Council. Most modern statutes require much detailed work to implement them. he had to bring two successive actions – one in damages before a common law court and another one in chancery to obtain an equitable injunction or a decree of specific performance. held by most people. since 1972 there has existed a joint committee of the two Houses of the British Parliament which examines every piece of delegated legislation to check whether the respective piece of legislation does not exceed the limits established by the statutory framework. This form of law is called delegated legislation or secondary legislation . 5 . but later on the parliament itself presented bills. The two systems themselves did not fuse. statute law / Acts of Parliament has (have) existed for 1000 years in the English legal system. when the Act of Judicature of 1873 was applied. Equity and common law went on in parallel. statutes became am important source of law only in the 19th and 20th centuries. as the Parliament is sovereign. What happened was a fusion of the administration of common law and equity. equity came to prevail. In the 14th century. until 1875. Acts of Parliament have sovereign force. Parliament became more and more powerful and the practice of law making by statute increased. In case of conflict with common law or equity. After World War II. The first important wave of legislation was under Henry II (1154 – 1189). so the relevant authorities (ministries. statute law prevails because no court of law or any other body can question the validity of an Act of Parliament. with the intervention of the state in the economy and the creation of the Welfare State. but only a court of law can declare the delegated/secondary legislation invalid. local authorities. statute law proliferated. In such a case. the rules of common law are still distinct from the rules of equity. Initially. Ever since the Tudor period. These details are not usually contained in the statute.A plaintiff who anted to obtain all the remedies he was entitled to. That application resulted in the abolition of the old courts of common law and the Court of Chancery. etc) make up the details and issue regulation in application of the statute. It is in the Tudor period that the modern procedure was established of giving three readings to a bill before it could become law. but sometimes even by a kind of parliament which consisted mainly of a meeting of nobles and clergy summoned from their shires. but both are now open to a plaintiff in one action before the same court. The committee issues an opinion as to the validity of that piece of legislation. if there was ‘conflict’ between the rules of common law and the rules of equity. each branch of which had the power to administer both common law and equity. the parliament contended itself with asking the king to legislate. • STATUTE LAW Contrary to the general view. parliamentary legislation became more general. So. Nevertheless. They were replaced by one Supreme Court of Judicature. and legislation made under delegated power can be valid only it it conforms exactly to the powers granted in the primary legislation.
It explicitly protected certain rights of the King's subjects. the king should not sell. The Habeas Corpus Act 1679 was passed by the Parliament of England during the reign of King Charles II to define and strengthen the ancient prerogative writ of habeas corpus whereby persons unlawfully detained can be ordered to be prosecuted before a court of law. that of 1215. King John was forced to accept it under threat of civil war. punishment should be in relation to the seriousness of the crime For modern times. In 1679. Magna Carta is normally understood to refer to a single document. such as : 1. whether free or fettered — most notably the writ of habeas corpus. respect certain legal procedures. and accept that his will could be bound by the law. whether by the Crown or by private individuals should. Magna Carta was re-enacted and it was confirmed by Edward I. allowing appeal against unlawful imprisonment. including the United States Constitution. Magna Carta influenced the development of the common law and many constitutional documents. Various amended versions of the Magna Carta appeared in subsequent years however. deny or delay justice 3. The Act contains provisions ensuring that persons imprisoned without legal cause. In 1297. on obtaining a writ of habeas corpus. It was the earliest attempt to limit the powers of the monarch and define the extent of the rights and liberties of subjects. Though amended. It was preceded by the 1100 Charter of Liberties in which King Henry I voluntarily stated what his own powers were under the law. and it is the 1297 version which remains on the statute books of England and Wales. have their detention examined by a judge within a set period of time. The Magna Carta required King John of England to proclaim certain rights (mainly of his barons). The re-enacted version can be considered as a declaration of certain fundamental principles. the Habeas Corpus Amendment Act was passed. no one shall lose his life and liberty “except by lawful judgement of his equals and by the law of the land” 2.• The Magna Carta This major piece of legislation was first enacted in 1215. it remains on the statute book to this day. the most enduring legacy of Magna Carta is considered to be the right of habeas corpus. • THE DOCTRINE OF JUDICIAL PRECEDENT 6 . Magna Carta was the first document forced onto an English King by a group of his subjects (the barons) in an attempt to limit his powers by law and protect their privileges. Magna Carta was arguably the most significant early influence on the extensive historical process that led to the rule of constitutional law today in the English speaking world.
in such circumstances. called rules of precedent. a judge’s decision in a particular case constitutes a ‘precedent’. namely cases in which the facts bear no resemblance to the facts in any previous case. the Bill is ‘reported’ back to the House for the Third Reading. where the rules and principles used by a judge to give a decision in a past case are regarded as material the new. are “binding” on lower courts. in the English system. After examination by the Standing Committee. the facts in question often resemble two or more divergent decisions. In such a case. current judge may take into consideration. which allows further general debate. This is different from the other jurisdictions. it must not be imagined that the law is always discoverable by the simple procedure of looking up and finding the right precedent. The standing of the rules of precedent depends on the status of the court which decided the case. In the first case (affirmative majority vote) the Standing Committee examines the Bill clause by clause and considers the amendments. Such binding nature comes from the rules of practice applied by English judges. but it has a specific coercive or binding nature in the English system. when the judge rules. On the contrary. But. to a large extent. English law is based on case-law. Therefore. Life teaches us that fact are infinitely various and by no means all cases are exactly covered by previous decisions. Case-law consists of the rules and principles acted on by the judges in giving decisions when trying a case. that is why. 3. in other words he establishes a precedent that future courts must follow. but he is not bound to do it. This approach has developed into a system under which precedents of the superior courts. the English system obliges a judge trying a new case to look back to see how previous judges have dealt with previous cases (precedents) involving similar facts. After the 3 rd Reading a new vote is taken. The vote may have two results: (i) a majority vote in favour of the Bill or (ii) no majority vote in favour 7 . Further more. the Bill is rejected or re-introduced in an amended form. In the second case (no majority vote in favour). These rules state that. cases of first impression arise even today. he legislates. whereas the decision of a county court judge has normally limited effect. namely the precedent). At the same time. • HOW A BILL BECOMES AN ACT IN THE ENGLISH PARLIAMENT 1. the courts have freedom of choice in deciding which decision to follow. The vote may have two results: (i) a majority vote in favour of the Bill or (ii) no majority vote in favour of the Bill. This rules is almost universally applied in all jurisdiction throughout the world. Second Reading – there is a general debate on the floor of the House and then a vote is taken.The starting point from which to explain the English doctrine of precedent is the principle of justice that like cases should be decided alike. The decisions of the House of Lords are treated with the greatest respect. This principle is enforced in English law by the rule of stare decisis (Latin term which means to observe the previous decisions. First Reading – the Bill is formally introduced into the House of Commons 2. if relevant to the facts of the case.
How so? Well. which already existed in the mother country. and it also means that there is no legal limit to the power of Parliament. every enactment. In the second case (no majority vote in favour). after the American War of Independence. THE AMERICAN LEGAL SYSTEM The origins of the American law can be traced back to the founding of the English colonies which were governed by common law and equity. the Bill is sent to the House of Lords for a similar procedure. but the courts also have an influence upon the development of enacted law. After the Royal Assent. the Bill is sent forward for the monarch to give the Royal Assent (to be signed by the sovereign – promulgarea de catre suveran). • THE ENGLISH PARLIAMENT In England the ultimate legislator is the Parliament because in the English traditional constitutional theory parliament is sovereign. was also imported and applied in the colonies. remove these powers as simply as it has conferred them. 5.of the Bill. As yet. then the rejections of the House of Lords are finally overruled. has to be interpreted by the courts. the role of which as interpreters of law is generally recognized. but it may also. Parliament is sovereign in matters of legislation enactment. laws and courts. In the first case (affirmative majority vote). including a federal system of government. in 1789. the Bill becomes an Act of Parliament. The Bill is examined in the House of Lords. the Bill is referred back to the House of Commons. Parliament enacts legislation and also delegates legislative power to other bodies or even individuals. Statute law. which may have two results: (i) a majority vote in favour of the Bill or (ii) no majority vote in favour of the Bill. however it be promulgated. the Constitution was ratified and the American system was established. In the second case (no majority vote in favour). Later on. this statutory procedure has not been invoked. by ACT. in other words the powers of the stated were officially separated into the executive branch. In the first case (affirmative majority vote). the Bill is rejected or reintroduced in an amended form. 4. the legislative branch and the judiciary branch. 8 . in order to be applied. Thus. with at least 1 year separating the 2nd Reading in the 1st session from the 3rd Reading in the 2nd session. A vote is then taken. The Bill is re-passed by the House of Commons in identical form in two successive sessions. This means that all legislative power within the realm is vested in Parliament or it is derived from the authority of Parliament.
as defined by Article III of the Constitution. then on the Constitution together with its statutes. authorities. powers were distributed between the federal government and the state governments. unfair competition. as follows: (i) Congress legislates in civil and criminal matters. they also have concurrent powers (joint. Amendment X to the Constitution gave birth to the State governments. The American legal system is based first on English common law. they can impeach him and finally remove him after investigating the President’s conduct. from which it borrowed the rule of precedent. commissions and departments) which control a lot of other activities. These amendments make up what is known as the Bill of Rights. confirm the nomination of judges an create inferior federal courts. Congress also have power over the Supreme Court (the judiciary branch of power) as they fix the size of the Court and control its money appropriations. The Congress can also override the President’s veto. By virtue of the principle of separation of powers. The fifty state enact legislation dealing with family relations and private property.The Constitution stipulates that this very document can be amended and also each branch of power can intervene in the decisions made by the other two. (ii) the President and his administration see to the implementation of the law and (iii) the federal courts make decisions on civil and criminal cases. According to the provisions of the Constitution. a state senate and a state assembly. the creation of business organizations. foreign and domestic trade. the licensing of professionals as well as public safety and morals. Congress ratified 10 amendments to the Constitution. Both types of governments have the power of taxation. copyrights and bankruptcies). namely state governments have a written constitution. the military. the structure of which is identical to the structure of the Federal government. In 1791. Congress (the legislative branch of power) has powers over the President whose appropriations of money they control (US – appropriation bill ). These interventions go by the set phrase of checks and balances. There are a number of agencies (also called boards. immigration. The federal government controls foreign affairs and matters of general interest (currency. The President can veto bills in Congress. therefore the appointment of the Attorney-General as well. The Senate (the upper house of the American Congress) is the one which confirms the appointment by the President of judges and Cabinet members. The Supreme Court interpret statutes and administrative regulations and determine their constitutionality. he also appoints federal judges and may grant pardon for federal crimes. simultaneous) in the field of business regulations (for instance antitrust laws. the three branches of government have different responsibilities. advertising and corporation securities). Congress impeach and remove judges. rules and regulations drawn up by the 9 . These agencies make and enforce rules and have quasi-judicial powers. This process is known under the name of judicial review . a governor assisted by a lieutenant governor and a state supreme court. patents of inventions. For instance.
the bills return to the full committees for more hearings and revisions on the amendments proposed by the subcommittees. a committee of conference is established. namely continuity. If the Bill is returned to Congress. 7. read and approved. Thus. After being studied by the subcommittees. business organizations. labor. coomercial law) and public matters (constitutional. the bill may be passed or defeated (rejected).government agencies. judicial review and judicial independence. Both senators and representatives may propose bills. 3. 2. the bill can be enacted without the President’s signature with only a two-third majority in each House of Congress. If the bill passes. The bills go to the full committees and then to the various subcommittees to be studied. The American system of justice has some important features. The President can either sign it into a law or veto it and return it to Congress. administrative. tax and criminal law and also trade regulation) as well as procedural law are founded both on the federal constitution and the decisions of the US Supreme Court and the fifty states’ constitutions together with the decisions of the fifty states’ courts. In the end. 10 . it will go through the same procedure in the other house (chamber). • HOW A BILL BECOMES AN ACT IN THE AMERICAN CONGRESS 1. The committee of conference includes representatives of both houses and its task is to work out a compromise version to be sent to each of the two houses for final approval. after debates on the floor of the respective house (chamber ). 6. If the compromise bill has the unanimity of both houses it is sent to the White House for the President to promulgate it. the hallmark of the American system is this combination of civil law and common law. 8. A final vote is taken on the floor of the second house to decide whether the bill is passed or is defeated. family law. 4. If the bill passes in the second chamber as well.The American Congress is made up of two houses – the lower one called the House of Representatives and the upper one called the Senate. flexibility. torts = delicate civile. Hearings are organized to debate on the proposed bills. property. In this system. 5. substantive law covering both private matters (contracts.
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