THE HISTORY OF COMMON LAW
I – KEY WORDS AND CONCEPTS
Equity
Take the form of equitable remedy. Used to be judged by court of chancery?
Inquisitorial, written and never tried by jury
“Possible” complement to common law: remains discretionary
Injunction, decree of specific performance, rescission of contract (cancels the validity of a contract), rectification (rectify or correct a written contract when it fails to express the intention of both parties)
The court of chanceryUsed to sentence equity to complete common law.
UncodifiedOpposed to the codified law (the roman law on the continent)
Case lawJudge-made law. It’s a made up of both common law and equity.
Opposed to Statute law (the law established by the act of parliament)
Common lawCe terme est difficile à traduire, mais habituellement nous retenons la traduction de mettre le féminin simplement devant: la commonlaw, car cela désigne le droit jurisprudentiel.
Can be defined in 4 ways:
-Law is the same for everyone. It replaced local customary law in the Middle ages
-Is build on local custom (opposed to statute law)
-Is completed by equity if necessary
-Is based on custom and uncodified (opposed to roman civil law which is a codified system of law)
PrecedentLegal doctrine by which earlier decisions of the courts serve as a guide in subsequent cases. It is a system of reasoning by analogy.
A common law remedy
Categorized according to their purpose, the four basic types of judicial remedies are (1) damages; (2) restitution; (3) coercive remedies; and (4) declaratory remedies.
The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.
Restitution is regarded as either a legal or equitable remedy, depending upon the nature of the property restored.
Remedies are also categorized as:
- Equitable. An equitable remedy is one in which a recovery of money would be an inadequate form of relief.
- or legal in nature.Monetary damages awarded to a plaintiff because they adequately compensate him or her for the loss are considered a legal remedy.
An injunctionEquitable remedy in favour of the plaintiffwhich would prevent the defendant from doing something.
DiscretionaryUpon the feelings of the judges. (For example, equity which is discretionary is nota right. It is up to the court to decide whether or not to grant equitable remedies.
At the time of the Norman conquest by William the Conqueror(Guillaume le Conquérant) in 1066, there was a whole complex network of local courts throughout England. Under the Normans, the barons who owned the landpresided over these courts. It was only much later, under Henry II, that this local customary law declined and courts were replaced by royal courts in an effort to unify law. At the same time, the king sent round circuit judges who travelled around the country to settle disputes. These judges sat in the assises.
To apply law ; To be applicable to ; The royal court The curia regis ; A dispute Un litige; A remedy Uneréparation; Damages Dommages et intérêts; It is up to the court to decide C’est à la cour de décider; A binding precedent Un précédent qui fait jurisprudence; A persuasive precedent Un précédent non impératif; The background L’histoireoul’arrière-plan; Equity prevails over L’équitél’emportesur; Subsequent Suivant
III – THE BACKGROUND TO THE ENGLISH LEGAL SYSTEM
English law is applied in:
-England
-Wales
-US(exceptLouisiana which is still a roman law country)
-Influence in Commonwealth(countries which were colonized by the British)
Scottish law is based on roman law.
Northern Ireland is yet an other system.
The United Kingdom (England, Wales, Scotland and Northern Ireland) share a common parliament, which is the sole statute making body. Statute law therefore is applicable in the whole of the United Kingdom.
English law is uncodified. It is essentially based on jurisprudence, which affects the whole approach to law, its conceptualization and methods used. The two main sources of English law are:
Case law: judge-made law
Statute law : legislation, enacted by parliament
+ community law (European, which often takes precedence over national law).
Case law is made up of:
-common law
-equity
Common law has several different meanings:
-1°/ - The Norman commun ley or common law, which replaced local customary law in the Middle ages and made the law common or the same for everyone throughout England and Wales. This was in an effort of uniformity so that the law will be the same throughout the country.
-2° / -Common law built on local custom, as opposed to statute law enacted by Parliament in Westminster. We shall come back to statute law in Unit 2.
-3°/ -Common law as opposed to equity,which evolved in the court of chancery to complete common law. We shall be dealing with that later on in this section.
-4°/ - Common law as a system based on custom and uncodified, as opposed to the codified roman civil law to be found on the continent.
a)Case law and the doctrine of precedent
There are two parts of a judicial judgement:
The ratio decidendi: the reason for the judgement, the reason behind the judgement or the core of the judgement. It is the binding part of ajudgment.
The obiter dictum: words said by the way or around the central judgement.
The ratio is the binding part of the judgement, which means that it must be followed by future courts whether or not they agree with the principle established. Thus it is this part of the judgement which creates judicial precedent.
The obiter dicta have only persuasive power.
We must note however that it is sometimes a controversal point as to what constitutes the ratio and what the dicta. The case of Donahue and Stevenson in 1932 is one such case. There have been much controversy as to the obiter and the ratio in this case. We’ll come back to that at a later point.
The obiter dicta can sometimes have a powerful persuasive effect on subsequent decisions according to importance of the court in which the decision is taken or according to the reputation of the judge concerned. When, for example, a decision is taken in the Supreme court of the USA – an other common law country as we have said above – this decision affects English law. Similarly, the obiter dicta of a prominent judge, one of the Lords of Appeal in Ordinary for instance, it can play an influential role in future decisions. Thus although the obiter dicta is not strictly binding, it combines to make the body of common law progress.
b)Common law and equity
In the late 15 century, petitions became more numerous. The king delegated his authority to his chancellor and the court of chancery came into being to administer equity. The chancellor was in charge of the great Seal and also of the writ office. His role was to hear cases and to establish decisions, to give fairness – or equity – to give justice to the litigants. The court of chancery functionned side by side with the common law courts until the end of the 19th century when they were joined. Thus a supreme court of justice was created with one court of original jurisdiction: the high court of justice and one court of appellate jurisdiction: the court of appeal which would hear appeals from the high court of justice.
Unlike common law, equity is inquisitorial, written and never tried by jury. Equity complements common law: it does not crush it. It provides then a complementary remedy to common law when common law alone fails to remedy a situation. Even today, however, equitable remedies remain discretionary. This means that equity is not a right: it is up to the court to decide whether or not to apply such a remedy. We must bear in mind the equitable maxim: he who comes to equity must come with clean hands. In other words, if someone asks for an equitable remedy, then he himself must be blameless, he himself must have clean hands.
Common law and equity are now judged in the same court and have been since the Judicature Acts of 1873 to 1875. A common law remedy sometimes requires an equitable remedy to complement it.
We could take the case of Miller v. Jackson from 1964. In passing we may note that Miller and Jackson is written Miller v. Jackson; the v. stands for “versus”. When we write it, we write a v.; when it is said, it is Miller and Jackson in a civil case in England.
The plaintiff, Mr Miller, bought a house next a cricket club. Once he was living in the house, he realized that cricket balls constantly came over the fence and spoiled the enjoyment of his garden. During the cricket season, he couldn’t sit there in peace and his plants and flowers were spoiled by the cricket balls. The cricket club built a very high fence, a 15 foot fence between the two pieces of property. But the balls continued to go over it.
Mr Miller then decided to sue the cricket club, to take action against them, for private nuisance. He was the plaintiff against the defendant which was the cricket club.
While recognizing the individual discomfort in this situation, the court nonetheless took into account the importance of the traditional game of cricket in English life. The cricket club in question had existed for more than 70 years. It was therefore decided that although a common law remedy of damages should be awarded to the plaintiff, it was unthinkable to grant an injunction, an equitable remedy, which would prevent the defendant from doing something, in this case the cricket club from playing cricket.
Lord Denning, the van master of the rolls, in his summing up, reminded the court of the principle that public interest must prevail over private or individual interest.
In this case, we see that the plaintiff has the satisfaction of having his complaint to be recognized as being valid in law. He receives compensation in the form of money,that is a common law remedy, whilst the cricket club has to pay for the nuisance it causes. But it is recognized as playing an important social function in English life. So we see here that a compromise has been reached by combining common law and equity.
In this case, the equitable remedy asked for was injunction. In other cases, it is more appropriate to provide other equitable remedies:
For example, a decree of specific performance. In contract, this forces the defendant to carry out an action, unlike the injunction which we have just seen, which forces the person to stop doing something.
Secondly, a rescission, a rescission of contract. This cancels the validity of a contract when a mistake has been made by both parties to the dispute.
Rectification: to rectify or correct a written contract when it fails to express the intention of both parties.
These are just a few of the equitable remedies which come in to complete common law.
In which countries of the UK is common law applied? Common law is applied in England and Wales.
What are the two main sources of English law? The two main sources of English law are case law and statute law.
What is the first definition of common law? The first definition of common law is that it is the same in all the lan.
a) Name the two parts of a judicial decision. The first part of a judicial decision is the ratio decidendi and secondly the obiter dictum. b) What is the difference between them? The essential difference between them is that the ratio, the binding part, is carried on by future courts and becomes part of the body of precedent, whereas the obiter has a persuasive role and is not binding.
When we say equitable remedies remain discretionary, what do we mean? When we say equitable remedies remain discretionary, we mean that they are not a right. It is up to the court to decide whether or not to grant equitable remedies.
In the case of Miller v. Jackson, what were these two parties called in law? Miller is the plaintiff and Jackson is the defendant.
What action was taken in that case? In the Miller v. Jackson case Miller sued the cricket club for private nuisance.
What decision was taken by the court? Miller was awarded damages, that is a common law remedy, but was refused an injuction which would stop the playing of cricket.
Definition of an injunction. An injunction is an equitable remedy which stops or prevents the defendant from carrying out an activity.
How long have common law and equity been judged in the same court? They have been judged in the same court since 1875.
Common law developped gradually throughout the Middle Ages
Cases of common law and equity have not always been judged in the same court. It’s only since 1875 that they have been judged together
The chancellor was appointed by the king
STATUTE LAW
I – KEY WORDS AND CONCEPTS
A statute is an act of Parliament. It means legislation.
Parliament is the only statute-making body. Parliament is composed of the House of Lords and the House of Commons.
A member of Parliament, is often refered to as an MP.
A shitf in powerRetournement de situation?
The pros and the cons. Advantages and disadvantages of delegated legislation by the Paliament
-in favour:
- much more flexible than statute as it is quicker and it is also easier to change.
- people dealing with these rules are more specialized in the specific areas concerned.
- it lightens the burden of Parliament, leaving it free for more important matters.
-negative side:
- civil servants (fonctionnaires) deal with this legislation when traditionally it is elected members of Parliament.
- The government minister decides on this, so courts are excluded in case of problems
- Delegated legislation cannot always be checked by Parliament as carefully as one would wish.
- Therefore it does not always conform to statute itself.
A Lord of Appeal in Ordinary or a Law Lord.Juge siégeant à la chambre des lords.
-Lord Denning, a well-known Law Lord, reminds us that it is not up to the judges to rewrite the law. If there is a weakness or an error, then Parliament should rectify it. Lord Denning wants to show that each person plays en individual role. The judges interpret what has been written by Parliament. They do not write the statutes; they interpret them.
-Lord Atkinson, an other well-known Law Lord stated this meaning of the literal rule.
To interpret a text, Law lords use guidelines (internal and external) and rules of interpretations (literal, golden, mischief)
Guidelines
- internal guidelines: Internal aids are elements of the statute itself which show the intention of the legislator.
- the long title of an act and the preambule set out at the beginning which stipulates the aim of the act
- the meaning of the words in context: the ustum generis rule : “of the same kind”, “of the same nature”. According to this rule, where two or more words are followed by general words, the general words must be read in relation to the particular ones. “cattle, sheep and pigs and any other animal must undergo veterinary testing”, “any other animal” in this sentence refers to farm animals bred for human consumption
- external guidelines, such as taking into account the context in which the act was passed : looking at the parliamentary debats when the legislation is still in the stage of a bill.
An edict Un édit; A task Une tâche; A bill Un projet de loi; The scope of a law La portée d’une loi
The literal rule. When the judge turns to the literal rule, he looks at the usual everyday meaning of the words in question. He uses the Oxford English dictionary as a reference. Lord Atkinson stated this meaning of the literal rule : “The judge must interpret the ordinary meaning of words unless something in the context, in the aim of the act or in the circumstances of the case indicates that they are being used with a special meaning, different from the usual one”. This rule, as you may guess, is the simplest one. It is used when there is little ambiguity in the text.
The golden rule La règle d’interprétation par la logique = règle apagogique
This rule is an extension of the literal rule. It is used when, by applying the literal rule, it clearly makes the text absurd or contradictory or when it reveals some inconsistency in the text.
The mischiefrule La règle d’interprétation téléologique
This rule looks back to the past to try to find out what mischief or wrong the act was made to remedy initially. Here we must ask a series of questions:
- Firstly, we must ask ourselves what was the situation in common law before this act was passed.
- Secondly, we must ask in what ways was the common law defective.
- Thirdly, we must look to what remedy was proposed by the statute.
- And finally what was the real reason for that remedy?
By way of case statedPar l’exposé des faits
To mislead someoneInduire en erreur
The statute which stipulated that the king was not allowed to levy taxes without his council was Magna Carta in 1215.
Parliament was established as being the sole law-making body by the Bill of Rights in 1689.
The king who made the record number of statutes was Henry VIII, who reigned from 1509 to 1547.