Common law 2022/2023

INTRODUCTION

1st PART - CIVIL LAW VS COMMON LAW

There are many different legal systems, which have grown up in and have been influenced
by different cultures and attitudes to law. It can be classified into two families: the Common
law system and the Civil law system.

I. THE CIVIL LAW FAMILY

Civil law is a codified system. In other words, every legal aspect is found in written law,
statutes, institution etc.

All the countries who have adopted the civil law system have a written Constitution. The
written constitution is based on specific codes.

Civil law is constantly updated.

The judge only applies the law since all of the procedures are written and his decision is less
crucial because they don’t shape the civil law.
Legal codes that specify all matters are capable of being brought before a court and so they
contain the applicable procedure and the appropriate punishment for each offense.

The only ones who can write the law are the legislators. As a consequence, the judge’s role is
to establish the facts of the case and to apply the provisions of the applicable code and
there is little scope for judge-made law.

It was mostly developed in continental Europe within the Roman influence.

Some countries with a civil law system : France, Germany, Japan and Brazil. Most of the
country has a civil law system.

II. THE COMMON LAW FAMILY

The Common law family is a judge-made law system. In other words, judges based their
decision on precedents, it's also called a binding precedent system. Also, it’s a case-law
system which is a system where judges create the law through the judicial decision.
In the original Common law system, there isn’t a written constitution or codes but some
countries of the Common law system have one like the USA.

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Most of the Common law countries are from the CommonWealth or were British colonies like
the United-Kingdom, Australia, New-Zealand, Singapore, Canada.

III. MIXED JURISDICTION

A hybrid legal system combines parts of more than one approach to create a system unique
to the country.
Some countries choose to integrate elements of the common law system and civil law
system or other systems.

Religious systems: the law relies on religious texts as its primary basis, and the courts
interpret the present facts and statutes in light of those religious texts. Many Middle Eastern
countries use religious law systems for all or part of their laws.

Customary law systems: is a system based on long-standing traditions in a particular

community. As a result, customary laws are typically unwritten and revealed only to group
members.

2nd PART - COMMON LAW GENERAL CONCEPTS

I. THE “COMMON LAW” TERM
Most countries who adopt the common law system are linked to England.

A. Origins
1. An English word
Most English-speaking countries share a common legal and judicial heritage.

There is a close relationship between Anglo-phony and the common law, since all the
concepts and intellectual constructs of this legal system are expressed in this language.

It can even be said that the law of the English language is the common law.

2. Original meaning

Originally, it meant the law as administered by the Royal Courts sitting in Westminster until
1650. This common law is so called to distinguish it from the various legal systems that
existed in the kingdom, especially in the north, where the barons still have the right of high
and low justice and apply a law derived directly from feudal customs and Anglo-Saxon law.

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B. Modern meaning

A branch of law in the English legal system is linked with other branches of law which are the
Equity and the Statute (legislation system).
Case-law is a jurisprudence which has a great importance in the Common Law system.
The applicable law means that it is applicable in countries that have a Common Law system.
The Anglo-American law has some common features and distinct features.

II. INTRODUCTION TO SOME LEGAL KEY CONCEPTS

A. Equity
1. What ?
It’s a term linked to fairness also, it's a source of law.

“Equity is justice administered according to fairness as contrasted with the strictly

formulated rules of common law.” (Blake Law Dictionary)

Equity is a system of laws that serves as a supplementary system, alongside common law
and statute law. This refers to judgements not being made through law, but through
“conscience”.

It’s a complex concept linked to common law countries since judges, lawyers and scholars
wanted to put more fairness in the justice system.

2. Why ?
Equity was added in order to bring an answer to a problem of lack of fairness that was
sometimes to be found at courts.

Indeed, the common law was regarded as slow, expensive and extremely technical by the
15th century. It was considered too rigid because of its procedural rules.

B. Habeas Corpus

Habeas corpus is a writ requiring a person to be brought before a judge or court, especially
for investigation of a restraint of the person's liberty, used as a protection against illegal
imprisonment. It’s recognized in many Common law countries but it can also be found in a
civil law country.

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This propaganda picture represents Lincoln’s suspension of the Habeas corpus during the
American civil war. Lincoln suspended the writ of habeas corpus between Washington, D.C.,
and Philadelphia to give military authorities the necessary power to silence dissenters and
rebels.

C. Case-law and precedents

A judge can create a precedent. Sometimes it’s difficult to find a solution for a judge
because a precedent for the case doesn't exist. In that case, the judge has to create a new
rule. Also, precedents are not always followed because judges are reluctant to follow the
same rule if the facts are different but also if the case has a rule which is overruled.

General definition: a “precedent”, in law, a judgment or decision of a court that is cited in a

subsequent dispute as an example or analogy to justify deciding a similar case or point of
law in the same manner.

Conclusion
● Common law is a legal system (opposed to civil law).
● Common law has a strong link to the English legal system.
● Common law has some distinctive features such as: equity, habeas corpus and the
use of judicial precedents.

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LESSON 1 - THE ENGLISH LEGAL SYSTEM

1st PART - ORIGINS OF THE COMMON LAW

I. THE CONTINUITY OF THE ENGLISH LAW

A. Comparison with Continental Law

Continental law refers to the civil law family. English law has not undergone the renewal of
Roman law or the transition to codification since it has developed autonomously. English
lawyers stress the historical continuity of English law.

English law is the product of a long evolution. Thus, the common law is often seen by English
thinkers as a law born of wisdom, a law capable of adaptation.

B. Introduction to the Main Periods of the Common Law

It has 5 periods :
- The Anglo-saxon law : it was the period before the Norman Conquest in 1066

- Start of the Common law: it was the period from the Norman Conquest in 1066 to the
beginning of the Tudor dynasty in 1485. This is the period of the formation of the
common law, in which a new system of law common to the whole realm develops and
replaces local customs.

- Competition with Equity: it occurred from 1485 to 1832 and it’s mainly characterized
by the development of a complementary system, the “rules of equity” alongside the
Common law.

- Competition with Statute law: from 1832 to the 20th century. It’s the modern period, in
which the common law is confronted with the significant development of a source of
law, the statute.

- Competition with extranational sources of law: 20-21th centuries. The contemporary

period is characterized by the decentralization and consideration of European
sources.

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II. THE DEVELOPMENT OF THE COMMON LAW

A. The Anglo-Saxon Law
1. Before 1066

A fundamental date in the history of England is 1066: the year in which England was
conquered by the Normans.
The period before this date is known in England as the Anglo-Saxon period. Roman rule left
little trace in England. Thus, for English legal historians, the history of law begins at the time
when Roman rule ended and various tribes of Germanic origin (Saxons, Angles, Jutes, Danes)
divided the country. It was around this time that England was converted to Christianity. Little
is known about the law of the Anglo-Saxon period.

2. Anglo-Saxon Laws

These laws were made after the conversion to Christianity. Unlike other barbarian laws, they
were written in Anglo-Saxon rather than in Latin. They regulated very limited aspects of
social relations. Although the country was then under a single sovereign, the law in force
remained strictly local. There was no common law for the whole country before the Norman
conquest.

B. The Formation of Common Law (1066- 1485)

1. The Norman Conquest (1066)

It’s a momentous event in the history of English law, for it brought to England, under foreign
occupation, a strong, centralized power, rich in administrative experience. The Norman
conquest marked the end of tribal rules.

2. From customary law to common law

The common ley or common law, as opposed to local custom, is the law that applies to the
whole of England. In 1066 this law did not exist. Local customs still applied.

The ordinary courts were gradually replaced by lordly courts, which continued to apply local
customary law. The ecclesiastical courts established after the Conquest applied canon law,
which was common to the whole of Christendom.

The elaboration of common law, English law common to the whole of England, was the
exclusive work of the Royal Courts of Justice.

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Customary law definition :

A custom, in English law, an ancient rule of law for a particular locality, as opposed to the
common law of the country.

A local custom outside of common law has been considered valid if it:

- has been practiced peaceably and continuously from time immemorial—in practice,
as long as living testimony can recall

- is reasonable, certain, and obligatory

- is confined to a specific locality

3. The courts

The Curia Regis: Medieval kings surrounded themselves with their most loyal followers. These
were their ministers having such roles as chancellor or treasurer. These ministers advised the
king on important matters in council. The king and his council were called the Curia Regis. As
the principle of separation of powers did not exist, these councils acted in legislative,
executive or judicial capacities. The king presided over these meetings and they were thus
called the ‘ royal court' .

Judicial institutions were gradually formed from the Curia Regis that sat at Westminster even
in the absence of the king; the Court of Exchequer, the Court of Common Pleas and the King's
Bench.

C. Rivalry with Equity (1485- 1832)

1. New “equitable” rules

The obstacles to the administration of justice by the Westminster courts meant that disputes
were often not resolved fairly.

As a result individuals who were unable to obtain justice from the royal courts appealed to
the King to intercede on their behalf.

This recourse was perfectly justified, but it led to the development of a system of legal rules
in contrast to the strict common law.

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From the 15th century onwards, the King's Chancellor increasingly became an autonomous
judge, ruling alone on behalf of the King and the Council. His decisions, originally based on
the 'equity of the case', became more systematic, applying the law to the case. His decisions,
originally made by considering the 'equity of the particular case', became more systematic,
applying 'equitable' doctrines which supplemented and corrected the 'legal' principles
applied by the royal courts.

Lord Ellesmere’s quote Earl of Oxford’s Case (1615)

Lord Ellesmere pointed out in the above case why there was a need for a Chancery: “Men’s
actions are so diverse and infinite that it is impossible to make any general law which may
aptly meet with every particular and not fail in some circumstances. The office of the
Chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and
oppression of whatever nature so ever they be, and to soften and mollify the extremity of
law.”

2. Consequences on the English Legal System

English law has therefore always had a dualistic structure: Alongside the common law rules,
which are the work of the Royal Courts of Westminster, also known as the common law
courts, it contains equitable remedies, which allow the common law rules to be
supplemented and amended.

So, among the English legal sources, you can find:

- Common law rules

- Rules based on Equity

D. Development of Statute Law (19th -20th centuries)

1. Legislative reform

This period saw the development of legislation.

English law had previously developed through a focus on the procedure. But English lawyers
were now to pay increasing attention to the substance of the law, on the basis of which the
solutions of the common law were to be systematically consolidated.

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2. Courts Reform

The organization of the judiciary was radically changed by the Judicature Acts of 1873-1875,
which created a new court, the Supreme Court of Judicature, and abolished the formal
distinction between the common law courts and the Court of Equity of the Chancery.

All English courts became competent to apply both the rules of common law and those of
equity.

E. 21th century, coexistence with other sources of law

1. Devolution, a constitutional revolution

In 1998, far-reaching reforms led mainly to the transfer of powers from the Westminster
Parliament to the assemblies in Scotland, Wales and Northern Ireland, and to the transfer of
ministerial powers: this is known as devolution. This has resulted in a degree of
decentralization of power.

2. Extra-national sources
a) English law and the European Union

The United Kingdom's membership of the European Economic Community, now the
European Union, since 1 January 1973 has necessarily affected English law.

b) English law and the ECHR

Although the United Kingdom was the first member state of the Council of Europe to ratify
the European Convention on Human Rights in 1951, it was not until the Human Rights Act 1998,
which came into force on 2 October 2000, that the Convention was incorporated into English
law.

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2nd PART – SOURCES OF ENGLISH LAW

I. OVERVIEW OF THE ENGLISH POLITICAL SYSTEM

A. General features of the British political culture
1. General comments
a) An old nation

Britain has a long history of independent existence as a more or less united union. It has a
strong commitment to democracy, with its representative institutions of government based
on regular and free elections, and strong liberal values about individual rights and
responsibilities.
b) A political model

Since the UK is an old nation, it was the first parliamentary democracy in Europe. So many
other countries modeled their institutions, party systems and methods on the British
experience. In particular, the Westminster model was exported to many of the colonies and
territories of the old empire as countries became independent.

2. Social deference
a) Parliamentary channels

British people have traditionally preferred parliamentary channels to anti-parliamentary

politics such as street demonstrations, direct action or violence. People generally accept the
main institutions of the state and the idea that issues should be resolved through the ballot
box and not otherwise.

b) Compliance to the authority

People have been willing to place trust in the political elite who govern them, so much so
that social deference (respect for or compliance with the wishes of those in authority) has
often been cited as a source of British conformity.

3. Continuity
a) Evolution rather than revolution

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British people prefer pragmatism to ideology and doctrine. As the country has no written
constitution, ideas and institutions relating to government have evolved over the years,
modified as change becomes desirable or necessary.
b) Consensus

They have a preference for agreement, cooperation and moderation. The majority of the
British people have long preferred cooperation to confrontation and party politicians, once in
office, have recognized this and avoided confrontation for much of the time.

4. Strong government

a) Strong leaders

The electoral system has traditionally emphasized the importance of effective and stable
government by a single party.

So, leaders such as Margaret Thatcher and Tony Blair have both been seen as “strong
leaders”, prepared to ignore the dissident voices of some of their backbenchers and even
carry out unpopular social policies.

b) Tolerance for the opposition

There is also an attitude of tolerance towards the expression of alternative and minority
opinions with a clear recognition of the right (duty) of the Opposition to oppose. The
existence of an official Opposition party in the House symbolizes a commitment to free
speech and the rights of personal liberty.

Margaret Thatcher political ideas :

She was a representant of the newly energetic right wing of the Conservative Party

M. Thatcher advocated :
- Greater independence of the individual from the state
- an end to (allegedly) excessive government interference in the economy (ex:
privatization of state-owned enterprises)
- reduction in expenditures on social services such as health care, education and
housing.

Tony Blair, decline of its popularity

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In his first term, he described his philosophy of government as “Third Way” , a form of
progressive politics distinguishing itself from the conservatism of both left and right.

He is a member of the British Labour Party and served as Prime minister of the UK
(1997-2007). He is one of the youngest politicians to become the Prime Minister.
His first term was dominated by financial reforms (Private firms were given an important role
in financing strat infrastructure projects, granted the Bank of England term the power to
determine interest rates without government consultation).
His second term was focused on international matters (coalition with Bush after the
September 11th attack).

However his popularity declined. Today he is one of the most unpopular Prime Ministers of
the UK due to his positions on some international conflicts and his link to the financial world.

B. The monarchy
1. A constitutional monarchy

A constitutional monarchy is a system of government in which a monarch, a king or a queen

shares the power with a constitutionally organized government.

The king or the queen may be the head of the state or purely a ceremonial leader.

The Constitution allocates the rest of the government’s power to the legislature and the
judiciary.

2. The British monarchy

The British Monarchy is by far the oldest of all constitutional monarchies.

A constitutional monarchy however is a state headed by a sovereign who rules according to
the Constitution. Such a constitution may be “written” and “codified”, but in Britain, it is
“unwritten” and “uncodified”.
The real beginning of the idea of constitutional monarchy dates from Magna Carta in 1215.

3. The importance of Magna Carta

Magna Carta has been described indeed as a “first attempt to express in exact legal terms
some of the leading ideas of constitutional government”.

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The significance of Magna Carta lies less in its specific provisions than in the two
fundamentals principles which implies :
- The first principle required the sovereign to rule according to law and to make himself
or herself accountable for the way in which he or she ruled. Magna Carta was indeed
the first formal document to insist that the sovereign was as much under the rule of
law as his or her subjects

- The second principle was the rights of individuals, took precedence over the personal
wishes of the sovereign

C. The executive power

1. Who ?

a) The UK government

In British politics, the “UK government” refers to the Prime Minister, the Cabinet and their
junior ministers and officials. This is the team of people responsible for leading and running
the UK. They are drawn from the political party which won the most seats at the last general
election.

b) A new Prime Minister

After an election, the leader of the winning party is appointed as Prime minister and in the
name of the King or the Queen, chooses other party members to work in government with
them for 5 years, until the next general election.

c) A new cabinet

In Great Britain, today the cabinet consists of about 15 to 25 members or ministers appointed
by the Prime minister who in turn has been appointed by the monarch on the basis of ability
to command a majority of votes in the Commons. Though formerly empowered to select the
cabinet, the sovereign is now restricted to the mere formal act of inviting the head of
Parliament’s majority to form a government. The Prime minister must put together a cabinet
that represents and balances the various factions within his or her own party ( or within a
coalition of parties).

2. What ?

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The government is known as the executive and is responsible for deciding how the country is
run and for managing things day to day. They set taxes, choose what to spend public money
on and decide how best to deliver public services. Government ministers have responsibility
for different government departments, for example, the Department for Health and Social
Care or the Department for transport.

D. The Parliament
1. A legislative branch

The UK Parliament is separate from the government. It’s also known as the legislature.

The UK Parliament is a law-making authority in the UK and it also works to check and
challenge the work of government through various processes known as scrutiny.

a) Who ?

The UK Parliament is made up of 3 main parts :

- The House of Commons,
- the House of Lords
- the Monarch

The House of Commons is the democratically elected part of Parliament. Its 650 members
are voted in, usually, every 5 years, when there is a general election

The House of Lords is the appointed part of Parliament. It’s independent from and
complements the work of the elected House of Commons. They share responsibility for
making laws and checking and challenging the work of the government.

The Monarch is the Head of State. Their role in Parliament is predominantly ceremonial. They
are politically neutral, so do not support any political party or get involved in day to day
politics.

The Monarch approves the bills passed by Parliament, enabling them to become law. The
Monarch invites the leader of the party that wins the most seats in a general election to form
the UK Government and opens the new parliamentary session each year.

King Charles III is the current monarch, who ascended the throne on 8 September 2022 upon
the death of his mother Queen Elizabeth II.

The Monarch’s role :

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The Monarch and their immediate family undertake various official, ceremonial, diplomatic
and representational duties.

b) What ?

They make and change the rules.

They also check and challenge the work of the government with scrutiny. Parliamentary
scrutiny is the close examination and investigation of government policies, actions and
spending that is carried out by the House of Commons and the House of Lords and their
committees.

E. The Westminster system

It designed how the relationship between the Parliament and the government worked.

1. Strong link between the executive and legislative bodies

The executive is organized very differently in a parliamentary system. In the UK, whose
Westminster system has been adopted in many countries, the executive branch is not
entirely separate from the legislative branch.

On the contrary, the British cabinet may be described as the leading committee of
Parliament. Formerly, The British Prime minister, the head of the government, could sit in
either the house of lords or the house of commons. The other ministers who make up the
cabinet must be members of one or the other house of Parliament. If the Prime minister
wishes someone who is not in Parliament to serve in the cabinet, he must either appoint him
to the peerage or find a vacancy in the House of Commons to which he can be elected.

2. Consequences

It follows that in the British system, the Prime minister and the cabinet are fully in charge of
Parliament. They are responsible, as the guiding committee of Parliament, for the
preparation and enactment of most legislation and of the budget.

There can be no permanent or serious conflict between the House of Commons and the
cabinet, for responsibility means that the government of the day must either prevail or give
way to another government.

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II. THE MAIN SOURCES OF ENGLISH LAW

A. General comments

Britain has the same sources of law as most western countries have. However, added to this
is the Common law that has been formulated by judges from actual cases.
Equity also has a special place as a source of British law. Legislation is the dominant source
of British law.

B. English legal system

1. United Kingdom

The UK is divided into 3 main jurisdictions :

- England and Wales
- Scotland
- Northern Ireland

Each jurisdiction has its own laws, court system, lawyers and judges.

2. English common legal system

They have some common legal solutions :

Laws that apply in one jurisdiction, particularly if they are derived from legislation (Acts of
Parliament and Statutory Instruments) may apply equally, or very similarly, in other
jurisdictions.

While the courts in each jurisdiction can decide cases differently from those in other
jurisdictions, the final appeal for all of them goes to the UK Supreme Court.

Moreover, the process of devolution has resulted in variations between the laws of Wales
and those of England, and even as between different regions in England. Acts of Parliament
can take effect differently, or at different times, indifferent parts of the jurisdiction of England
and Wales.

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C. A lack of Constitution ?
1. A myth ?

English constitutional law exists. Great Britain does have some constitutional law and
documents that can be described as a constitutional framework.

2. What is English constitutional law made of ?

a) A variety of constitutional acts

Constitutional law has a variety of sources, such as Acts of Parliament also called statues,
common law or long-established principles known as conventions.

b) Judge-made constitutional law

However, one cannot generally know the constitution status of a rule before the courts have
classified the rule as a constitutional one.

Example :

In Thoburn v Sunderland City Council (2002) (Queen’s Bench Division) Lord Justice Laws
distinguishes between two categories of <acts of Parliament, constitutional and ordinary. He
attempts to explain what a constitutional statute is and then proceeds to give some
examples.

Quote from the case

“We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and
‘constitutional’ statutes. The two categories must be distinguished on a principal basis. [...]

Examples [of constitutional statutes] are the Magna Carta, the Bill of Rights 1689, the Act of
Union, The Reform Acts which distributed and enlarged the franchise, the HRA (Human Rights
Act 1998), the Scotland Act 1998 and the Government of Wales Act 1998.”

3. The Bill of rights

The Bill of Rights, formally an Act Declaring the Rights and Liberties of the Subject and Settling
the Succession of the Crown (1689), one of the basic instruments of the British constitution,

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the result of the long 17th century struggle between the Stuart kings and the English people
and Parliament.

The main purpose of the act was unequivocally to declare illegal various practices of James
II. Among such practices proscribed were the royal prerogative of dispensing with the law in
certain cases, the complete suspension of laws without the consent of Parliament, and the
levying of taxes and the maintenance of a standing army in peacetime without specific
parliamentary authorization. A number of clauses sought to eliminate royal interference in
parliamentary matters, stressing that elections must be free and that members must have
complete freedom of speech. Certain forms of interference in the course of justice were also
proscribed.

D. Legislation

1. Importance and diversity sources of law

a) An old and important source of law

Non-british students studying the common law system often make the mistake of
minimizing the importance of legislation in these systems. Legislation in one form or another
is quite old in England.

Today, all power derives from Parliament according to the principle of Parliamentary
Supremacy. Legislation is the most important source of law in the English legal system.

b) A diversified source of law

When one thinks of legislation, one automatically thinks of a law enacted by a legislative
body, in this case, the British Parliament. But this is only one source of legislation in Great
Britain. Parliament can delegate some of its legislative power to other bodies, such as
governmental departments or agencies.

In addition, European Union law and the European Convention for the Protection of Human
Rights and Fundamental freedoms (ECHR) have both been incorporated into domestic law.

2. Some general features of legislation

Legislation is a term used to designate the laws that Parliament, or other people or bodies
authorized to do so by the Parliament, pass.

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Before a law can come into force, all three must usually agree (Commons, Lord and
Monarch). Laws passed by the Parliament are called statutes. These can also be referred to
as Acts of Parliament or primary legislation.

In England, Acts of Parliament constitute the highest form of law. All other sources are either
subordinate to or are made valid by Acts of Parliament.
If there is any conflict, legislation prevails.

3. Primary legislation : Acts of Parliament

a) Types of bills
(1) Public Bills

Government bills are the most common. They are introduced by a member of the
government. This Cabinet is responsible for the government’s policy and to execute this, it
proposes Bills to Parliament.
The legislative intentions of the government are outlined in the Queen’s Speech that is given
at the beginning of each parliamentary year. This speech is written by the government.

Private Member’s Bills are introduced by a back bench member of parliament that is a
member who is not part of the government. The individual MP introducing the Bill has to gain
enough support from other members of Parliament to be able to introduce the Bill, but that is
only one obstacle. The individual member must also convince the government to allow
enough time for the Bill to be debated.

(2)Private Bills

These don’t change the general law but it affects the power of local authorities, companies
or applies to a defined group of individuals. There is no precise way of knowing when a Bill
should be qualified as private.

Some examples of topics of Private Bills concern patents, copyrights, tariff exemptions or
naturalization of individuals.

b) Parliamentary proceedings
(1) Who propose ?

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Passing an Act of Parliament is a long and complex process. Before it comes into force, a
proposed law has to go through a number of stages. Although proposals for a new Act or
Parliament come from a number of sources (advisory agencies, pressure groups or
individual Members of Parliament), it's the government that introduces most of the new Acts
of Parliament.

(2)Green and white papers

Green Papers are consultation documents produced by the government. The aim of this
document is to allow people both inside and outside Parliament to give the department
feedback on its policy or legislative proposals.

White Papers are policy documents produced by the government that set out their
proposals for future legislation.

White Papers are often published as Command Papers and may include a draft version of a
Bill that is being planned. This provides a basis for further consultation and discussion with
interested or affected groups and allows final changes to be made before a Bill is formally
presented to Parliament.

(3)Formal proceedings

In order to become an Act of Parliament, a Bill must pass through the process of enactment
in both Houses of the Parliament. Starting either in the House of Commons or the House of
Lords, a bill then moves on to the other House once it has gone through the required stages.
The most important Bills are first presented in the House Of Commons.

Parliamentary proceedings :

- First reading : the Clerk of the House (impartial, doesn't have a political affiliation)
reads the title of the Bill. This is a purely formal requirement so there isn't any debate
or vote.
- Second reading : The Bill is printed, and debates begin (a general debate on the Bill).
A vote can take place if more than 20 MP’s object to the Bill.
- Committee stage : A committee deals with the Bill in detail, clause by clause. This is
normally carried out by a Select Committee, but in important cases, the full House
may sit as a committee.
- Report stage : This is the opportunity for the whole house of Commons to debate and
to amend the Bills.

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- Third reading : This is a general debate on the Bill. Only minor technical amendments
are allowed at that stage.
- Ping pong : This process is repeated when the Bill proceeds to the other House. If any
further amendments are made by the other House, the bill is referred back to the first
House, which can reject these amendments.
- Royal assent : The bill proceeds to Royal Assent, a purely formal stage, once it has
successfully passed through both Houses. The bill becomes an Act of Parliament upon
the receipt of Royal Assent. Unless a date of enforcement is specified in the act itself,
the provisions of Act will then come into force immediately.

4. Delegated/secondary legislation
a) Why ?

Parliament has the responsibility of making law. However, to a certain extent, this power can
be delegated to other bodies for various reasons :
- Often , members of Parliament are not sufficiently knowledgeable in fields that need
an expertise or more local view pont
- The delegation process speeds up considerably , the time it takes to pass legislation
and also allows it to be adaptable in time.

b) How ?

For these reasons, the Parliament will vote on a general statute that leaves the details to be
specified by authorities that are better suited to this. The product of such delegation is called
delegated, subordinate or secondary legislation.

Delegated legislation for outnumbers parliamentary acts. Hence, the importance of this
source.

Delegated legislation always requires an initial stature voted by Parliament that is referred to
as Parent Act out the Enabling Act. This act describes the power delegated, such as its area
and its scope. In some cases, the Act can require parliamentary approval of the delegated
legislation.

c) Different types of delegated legislation

(1) Statutory instruments

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These are the most common forms of delegated legislation. Parliament will delegate its
power to a governmental department or to a ministry to make rules and regulations in their
respective areas.
(2)Bye-Laws

They are passed by local authorities or local bodies and then approved by the central
government. They can concern such local matters as where one is allowed to park vehicles.

(3)Orders of the Legislative Committee of Privy Council

These are made by the government in times of emergencies, approved by the Privy Council
and signed by the Queen. They can also consist of orders to give legal effect to European
directives.
5. European law
a) European Union Law

The United Kingdom joined the European Union 1973. Gradually, it has granted power to the
Union to make law that affects the country. Generally speaking, international law only has
effect in the United Kingdom when it has been incorporated into domestic law as an Act of
Parliament.

Therefore, any international treaty signed by the UK would only become law in the country if
the Parliament passed a law incorporating it.

b) The European Convention

The European Convention for the Protection of the Human Right and Fundamental Freedoms
(ECHR) is a treaty of the Council of Europe and not the European Union.

Therefore, as with other non-European Union international law, the ECHR could not be directly
enforced by English courts until it was incorporated into domestic law by an Act of
Parliament.

Before, this was one, English citizens making claims to any of the rights enumerated in the
Convention had to petition into the European Court of Human Rights and not as an English
court.

Humans Rights act

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The Humans rights act 1998 has changed this. This act incorporated the convention into
English law and it can thus be applied directly by the courts. The Act received Royal Assent
on November 9, 1998 but only came into force on October 2, 2000. In the intervening time
period, magistrates and judges received training to implement the text.

c) Post-Brexit: Retained european law

Retained EU law is a form of UK domestic law. It was created to preserve the substantive law
of the UK after the EU law was “cut-off” as a source. The purpose of doing this was to provide
legal continuity and certainty in the aftermath of Breixt, for individuals, government,
businesses and other organizations.

E. Rules of laws vs Parliamentary sovereignty

These two concepts: rule of law and parliamentary sovereignty are crucial to understand the
English legal system.

1. Parliamentary sovereignty
a) Acts of Parliament are superior

Generally, countries that recognize the superiority of their Constitutions over other forms of
law require a special procedure for amending the Constitution that is more complex than
the enactment of the modification of ordinary law i.e., non-constitutional law.

This is not the case in English due to the principles of Parliamentary Supremacy or what ùay
be referred to as Parliamentary Sovereignty : the Principle of the Parliamentary Supremacy
simply means that Parliament is the highest source of law and no parliament may bind
successors (Parliamentary Sovereignty). In other words, a Parliament may enact, modify and
revoke any law, whatevers its source or its status.

b) Why ?

This constitutional convention began during the battle of power between Parliament and the
Stuart monarchy in the 17th century. Parliament, to limit the monarchy’s power, declared
itself the sole power to enact law. The courts upheld this declaration. Parliament thus
granted them their independence. Parliament can therefore enact a law that modifies or
even abrogates another act having constitutional status through its ordinary legislative
procedure.

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2. Rule of law
a) General definition

The Rule of Law is an important part of the British Constitution. Indeed, this means that no
one is above the law including the royal family, the government, ministers and public bodies
in general..

b) Dicey’s idea

Albert Venn Dicey conceived the idea in the 19th century “the absolute supremacy of regular
law”. For him, all classes of people are equal before the law.

c) Consequences

Individual rights must be set by legal rules and not arbitrarily.

No one should be punished unless the courts decide there has been a breach of law.
All people are subject to the law, regardless of their position in society.

F. Finders of the law and precedents

1. Some key definitions

a) Stare decisis

The full expression is stare decisis et non quieta movere

It means to stand by decision and not to disturb the undisturbed (that which is already
settled).

It was already used in the 17th century, the meaning that it has today, that the courts must
stand by previous decision, the precedent and not disturb settled points (Black’s Law
Dictionary) was a development of the 19the century.

b) Common law

In this context a comprehensive body of rules and principles formulated by court decisions
that are applied to future cases just as a judge would apply statutory law.

c) Case-law

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The rules and principles found previous cases. Each of these previous cases forms wha is
called a precedent. The precedent can then serve as a model for future cases.

2. Evolution of the “Finders of the law”

a) Starting from scratch

The formation of the common law by the royal courts and royal judges was the result of
individual cases. No real body of national law existed when William I conquered England so
these judges had to find solutions to conflicts through the use of local customs, modified or
not, and through discovering new solutions to old or new problems.

b) The Effect of centralization

Due to a strong centralized court system with a small number of royal judges and lawyers
interacting both in courts and in inns, these rules and principles could be known and be
applied again in future cases until they created a substantive common law that was applied
throughout the country.

c) The danger of precedents

However, at the origins of common law, royal judges didn’t consider themselves bound by
decisions taken by other royal judges. Judges didn’t consider themselves to be law-aker but
law finders.

Their decisions couldn’t bind future courts for various reason :

- an important one being that there were no accurate reporting cases.

- Even when this obstacle was removed and the influence of individual cases became
stronger, it was still felt that judges could make errors and future courts should not be
bound to repeat this error through a concept of binding precedents.

d) The influence of Bentham

Jeremy Bentham (1784-1832) was an English philosopher, jurist and social reformer regarded
as the founder of modern utilitarianism.

J. Bentham led a school of thought that desired a continental type of codification of English
law to fight against the social injustice of his times. Due to the ideas of Bentham, there

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seems to have been a recognition that the legal system needed to be based more on
positive law.

The doctrine of binding precedents began to be admitted. Nevertheless, this acceptance

depends highly on the personality of the different judges, many of whom felt that past errors
should not be repeated and so did not consider themselves bound by earlier decisions that
they felt wrongly taken.

These judge-made rules and principles being gradually known could be increasingly
followed in subsequent cases. They became the positive law of England.

e) The Judicature Acts 1873-1875

The Judicature Acts 1873-1875 changed this. It reformed the courts and created a strict
hierarchy among them. It also followed from this that courts could not decide in a manner
entirely free from the decisions taken by any court superior or in some cases by courts at the
same level in the hierarchy. Hence, the doctrine of precedent as we know it today developed.

3. The importance of judges in the English legal system today

English judges can influence the law by their interpretation of legislative Acts as is true in
most countries. However, in a common law system, the power of judges goes beyond just
the interpretation of texts.

a) In the interpretation of the main sources of law

When judges in England are confronted with a legal question in a case, they have different
possibilities for finding a solution when there is legislative rule and when there is no-
legislative solution.

(1) Legislative rule

Due to the principle of Parliamentary Sovereignty, legislation voted by Parliament is superior

to all other sources of law, so that if there is a parliamentary Act that can resolve the
question, this must be applied. However, even when this is the case, the Act may need to be
interpreted by the judge. This interpretation can in itself create law. That is to say, when the
same parliamentary Act is applied in a future cease, the judge in that case may be required
to adopt the same interpretation.

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(2)No legislative rule

Without governing the legal question before the court, the judge must resolve the case using
other sources of law. In most cases, a solution will be found in the common law. Where there
is no solution to be found in statutory law, common law or any of the other possible sources,
the judge will be required to use common law reasoning.

There are 2 possibilities:

- The judge will look to previous decisions and through the principles of common law
established in these, he will find a solution.
- The judge will create a new principle of law that resolves the issue before the court.
This then may become part of the body of common law.

b) A legal system based on precedent

(1) Consistency

There is a basic principle in English law; like cases should be treated alike. Most courts will
decide a case in more or less the same way that another court has decided a case having
similar facts.

(2)Security

For an English lawyer, it’s the only way to avoid chaos in the legal system. The idea that any
judge can decide a case in any way that this judge deems fit without taking into
consideration previous decisions concerning the same type of facts is thought to lead to
great injustice. Not only does it seem unfair to an English lawyer or to an English judge not to
treat cases alike, it’s also important to do so to maintain a certain consistency in the legal
system.

(3)Predictability

They can rely on hundreds of years of case law on which to base their decisions.
Consequently, the law gains a certain predictability that isn’t only comforting for the legal
profession, but also allows it to be better accepted by the people who see that legal rules are
applied to all alike; A judge therefore may follow decisions taken in precedents cases due to
this natural leaning towards a legal system that seems just, consistent and predictable.

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(4)A set of rules: the doctrine of precedent

However, the choice to follow or not a previous decision is not left to the individual judge. A
set of rules governs the use of case law. These rules are found in the doctrine of precedents.

Binding precedent :

The doctrine of precedents dictates that in certain circumstances, judges are required to
follow previous decisions. When a judge makes a decision in a case, it's possible that a
precedent has been formulated. This precedent can be considered binding for other future
courts.

Persuasive precedent :

However, a precedent can be formed that isn’t binding on future courts but can be
influential. Inferior courts or tribunals make decisions that have no effect on future cases,
and one says that these decisions do not formulate a precedent.

G. Equity
1. Evolution of equity
a) The importance of the Chancellor

As equity became more and more popular, vice chancellors were named to cope with the
number of cases petitioning in equity.

In the 16th century, a non-cleric, Thomas More became Chancellor. He was a common law
lawyer. It then became the general practice that the Chancellors were chosen from the rank
of the common law lawyers. They brought with them their common law mentality. They
began to give reasons for their decisions which were often reported.

b) Conflicts with Common law

Although equity and the common law were intended to be two complementary legal
systems, there were many instances of conflict between them.This conflict was more or less
settled in the Earl of Oxford case (1615) where it was decided that when equity and common
law conflicted, equity would prevail. Thereafter, the two systems created separate and
complementary jurisdictions with equity generally supplementing the common law.

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c) Maxims of Equity

The maxims of equity are basic principles upon which the rules of equity have been
established. The courts of equity used what is referred to as the maxims of equity to assist
them in their decisions.

Example of maxims :

● He who comes into equity must come with clean hands. A claimant seeking an
equitable remedy must not himself be guilty of unconscionable conduct. The court
may then consider the past conduct of the claimant.
● Equity will not suffer a wrong to be without a remedy
● He who seeks equity must do equity
● Equity is equality
● Equity looks on that as done which ought to be done
● Equity regards substance rather than form
● Where equities are equal, the first in time will prevail
● Equity follows the law
● Delay defeats equity
● Equity will not concern itself with abstract wrongs.

d) Criticisms of Equity decisions

It was considered that equity was only as fair as the Chancellor was fair. It was said the
Court of Chancery “varied according to the length of the Chancellor’s foot”.

Decisions of the courts of equity could conflict with each other.

In time, just as the common law had its own set of rules, principles and remedies, equity also
acquired its own set of rules, principles and remedies. This diminished the notion that the
Court of Equity was a court of conscience, and the law of equity began to have the same
rigidity that it was originally intended to remedy in the common law system.

e) Judicatures Actes 1873-1875

The Judicature Acts 1873-1875 which modified the structure of the court system, also
provided that all courts could thenceforth judge in law or in equity. This didn’t mean,
however, that the common law and equity merged, it only meant that the same court could

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apply a rule, principle or remedy of either equity or of law. Thus the fusion was institutional
more than substantive.

2. Importance of Equity today

Equity isn’t only important historically, it also plays a considerable role today in many
regards. The different rules and maxims of equity are still applied as are the use of equitable
remedies. Equity has remained a method of adopting law according to the evolution of
society (even though this role is increasingly fulfilled by Parliament).

Although equity is important today in only specific areas of law, especially contracts, and
property, decisions stress the continuing use of this source and its complementary nature in
relation to the common law. They also demonstrate that despite the loss of much of its
flexibility, equity remains true to its origins, namely, to be fair.

H. Customs
1. Among the other sources of law

Customs can be considered as a separate source of law in the case where a specific
practice exists locally and isn’t part of the common law :

● Often it’s a right that is given locally but one that is banned by the common law. An
example of this is the right given locally to use land belonging to another as in the
right of passage.
● A custom in contradiction to a statute would not be acceptable.

2. Conditions to recognize a custom

❖ The custom must be precise, not vague

❖ The custom should have existed through common consent and not developed from a
practice that as taken by the use of force
❖ The custom needs to exist in a particular geographic area
❖ According to some scholars, the custom must be considered obligatory
❖ The custom must be reasonable (the reasonableness of the custom being decided by
the judge)
❖ The custom must have existed continually since time immemorial

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3rd PART. THE ENGLISH JUDICIAL SYSTEM

The English judiciary system is based on a hierarchy with the Supreme Court as its apex
incases involving English law. Unless otherwise mentioned, this court system applies for both
England and Wales.

We deal with the English courts from the first level of jurisdiction to the Supreme Court as a
last resort.

I. THE COURTS
A. Lower courts of England and Wales
1. Specialized Tribunals

Many specialized tribunals exist in England. They often deal with cases concerning private
individuals and the State. Their proceedings are generally less formal than those before the
courts. They are often composed of a legally trained chairperson and two lay-persons who
are experts in the area dealt with by the tribunal

Examples : Employment Tribunals or the Social Security Appeal Tribunals.

2. Magistrates’ Courts

Magistrates’ Courts are the local courts situated throughout England and Wales.

Civil cases

Criminal cases : if the offense is not considered a serious offense. If the offense is a serious
one they are the first hearing of indictable cases that are then sent to the Crown Court for
trial.

3. County Courts

County Courts are found throughout England and Wales. They are the inferior courts on
which circuit and district judges sit. They traditionally have jurisdiction in civil cases.
Originally the County Courts hear only cases concerning small claims (cases having little
monetary value), however ith time their jurisdiction has brown, and as we have seen, there is
some overlap with the jurisdiction of the High Court in certain areas.

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B. The Senior Courts of England and Wales

1. Crown Court

The Crown Court is a single court having several chambers located in many towns in
England and Wales, the most famous being the Central Crown Court in London, better known
as the Old Bailey.
a) Jurisdiction

The Crown Court is the main court for serious criminal cases. It also hears appeals of
Magistrates Courts decisions.

b) The Jury

In Crown Court, it’s the jury who tries the facts of the case when an accused person pleads
not guilty. However, a recent statute, The Criminal Justice Act 2003 allows a trial by judge
alone in some situations.

2. High Court of Justice

The High Court of Justice hears cases in original or appellate jurisdiction. Its cases are mainly
civil but may also be criminal.

The High Court of Justice has 3 divisions : Family division, Chancery division and Queen’s
Bench division. Each of these three divisions has its own divisional court that hears cases in
appeal. For example, the Family division of The High Court hears cases at first instance by a
single judge, while the Family divisional court generally hears cases on appeal by a panel of
judges.

3. Court of Appeal

Below the Supreme Court is the Court of Appeal, the highest court within the Senior Courts.
It’s divided into Civil decisions and a Criminal division.

C. Supreme court
1. Supreme court’s precursor
a) The Appellate Committee of the House of Lords

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The House of Lords, the upper chamber of the legislative branch of the English Parliament,
had not only a legislative role but also a judiciary role until recently. It was the highest
appellate court in civil and criminal affairs named the Appellate Committee of the House of
Lords.

b) Criticism

In theory, the judicial role of the House of Lords was separate from its legislative one.
However, it was often criticized by jurists who believed that the functions were not as
separate as they could be and that the principle of separation of powers was violated.

2. The Constitutional Reform Act (2005)

a) The Act

The Constitutional Reform Act of 2005 corrected this by creating a Supreme Court entirely
independent from the House of Lords that now has only legislative role.

b) The Supreme Court

The Supreme Court has been the Highest national court of appeals in both criminal and civil
cases since October 2009 hearing appeals in all civil cases in the United Kingdom and in
criminal cases coming from courts in England, Wales and Northern Ireland. It generally hears
cases that have legal importance coming from the Court of Appeal or in certain rare
circumstances the High Court.

The Court is composed of the President and the Deputy President and ten others Justices of
the Supreme Court The decisions are taken by a majority vote.

D. Some judicial decision vocabulary

1. The obiter dicta

Also known as obiter dictum. It refers to a judge’s comments or observations, in passing, on a

matter arising in a case before him which does not require a decision. Obiter remarks are not
essential to a decision and do not create binding precedents.

2. The facts

Judgment contains the facts of a case.

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3. The ratio decidendi

Literally the rationale for the decision. The essential elements of judgment which create
binding precedent, and must therefore be followed by inferior courts, unlike obiter dicta
which don’t possess binding authority. It’s also known as ratio.

4. The decision

This is the result of the work of the judges on the facts, points o f law, and precedents. This is
ultimately the decision taken by the judges for a particular case.

II. JURY AND THE COURTS

A. Evolution
B. Importance of Juries
C. The function of the jury

III. JUDICIAL REVIEW

A. The prohibition of Primary legislation judicial review
B. Judicial contradicting views
C. Human Rights Act and Judicial review

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