Par coursdedroit le 8 Mars 2015 à 20:42
English law is the law applicable to England and Wales. It is different from Scottish law, Scotland having different laws concerning family laws and contracts. As for Northern Ireland, it has specific laws concerning mainly terrorism.
English law is limited to England and Wales but it has a great influence over the laws in a number of countries :
-The law of the USA.
-New Zealand law.
And more generally over the laws of England's former colonies.
Although all these countries have laws which have developped in different ways, they all have in common the bases of the Common Law and they are called Common Law Countries.
The term «British Institutions» covers the institutions common to the whole United Kingdom, that is to say :England,Wales, Northern Ireland and Scottland. For instance,the British Parliament is an institution (which includes representatives from England,Wales, N.Ireland and Scotland) common to the whole UK.
The principles of the law was recognized in England at a very early period. It has been accepted since the time of Magna Carta in 1215. Magna Carta has been the symbol of public liberties for English men but also for the rest of Europe. Its scope (sa portée) was greatly exagerated at the beginning: it guaranteed a number of liberties to all free men at a time
when all men were not free. And it was only in the 15th century when bondage was abolished and all men were free that it could be applied to all. Although it was a symbol, Magna Carta marked the beginning of the law applicable to all including the King.
Magna Carta was followed by a number of other laws and statutes passed by Parliament which gradualy limited the King 's power and prerogatives, so that today Parliament has the sovereignty and the King, like anybody else, is limited in his actions by the legislation adopted by Parliament. Thus, since the Crown Proceedings Act of 1947, the Crown is liable for any prejudice occasionned to third parties by itself, its agents or employees, so that the motto (formule) «the King can do no wrong» is no longer true today. In the same manner, any state department, any branch of the administration can be brought before the courts by any citizen who thinks he has been wronged in his rights .
In England , but also in the whole UK, the source of all legislation is Parliament. Its Acts are applied to all and prevail over all the sources of law (Common Law and Equity).
The House of Commons is free to legislate as it pleases. It is bound (to bind, bound, bound, lier) by no precedent and by no previous legislation. Contrary to the French situation, there is no control of the constitutionnality of the laws. Last,the laws passed by Parliament are binding upon the courts (must be applied by the courts), although English courts have an important power of interpretation of the laws.
CHAPTER 1 :The British Parliament
It is composed of two chambers (Houses):
- a lower chamber, the House of Commons
- an upper chamber :the House of Lords
The history of Parliament can be summed up to the gradual but sure growth
of the House of Commons at the expense of (aux dépends de) the House of
SECTION 1 :Parliament before.
1. Origins of Parliament.
The Parliament has its origins in the Middles Ages. At that period the King governed with the help of two councils :
The Privy Council, composed of the King's personal advisers who helped him in the day
to day administration of the Kingdom.
-The King's Council, composed of representatives of the Counties, of the Towns (boroughs) and of the Nobility, to whom the King submitted his financial demands. In fact, these representatives were asked to vote the taxes.
The Privy Council was to become the executive.The King's Council was to
become the Parliament.
In the beginning, the King's Council was composed in an informal way without any define criterion and their numbers fluctuated.
In 1213, King John summoned (convoquer) 4 representatives of each county to sit at the King's Council.
In 1265, during the civil war between the King and his Barons, the leader of the Barons summoned a first Parliament with two representatives from each town and two representatives of each county.
In 1295, King Edward 1st summoned what historians have called the Model Parliament composed of 400 representatives of all the orders (or estates) of the Kingdom including the Clergy.
At that time, to discuss the taxes and problems submitted to them by the King, the Nobility sat in one room and the representatives of the Commons (the Commoners) sat in another room. After the separate deliberation, the two groups met in plenary session during which they told the King of their decisions through their respective speakers.
Although in the beginning the Lords had an obvious advantage that of being the direct advisers of the King and the necessary intermediates between the Commons and the King, the Commons very quickly acquired the primacy in financial matters.
Simply because the wealth of the Country was in the hands of the middle classes (burgesses of the towns and small nobility of the counties), from the 15th century the King took the habit of submitting his demands for taxes first to the Commons. Taxes had to be approved first by the Commons before being submitted to the approval of the Lords.
The precedence of the Commons on financial matters does not mean that the Commons were all-powerful in the Middle Ages or later. In fact it was only in the 19th century after the first reform bill of 1832 (electoral reform) that the House of Commons became independant of the Lords and no longer composed of placemen and nominees of the Lords.
A series of successive electoral reforms in the 2nd half of the 19th century will reinforce the independance of the Commons, in particular two successive acts against electoral corruption at the end of the 19th century will make the Commons totally free of any source of pressure.
In the 20th century two Parliament Acts voted in 1911 and 1949 will consolidate the precedents of the Commons. The 1911 Parliament Act suppressed the right of veto of the Lords for financial bills and reduced their right of veto to a suspensive veto of two years for other bills. The 1949 Parliament Act reduced the suspensive veto of the Lords to one year
for ordinary bills.
2. Independance of the Commons against the Royal power.
In the beginning, the King's Council had been created by the King to serve his own aims and needs. They were summoned by the King at his own pleasure (when he pleases). That is to say, when he needed money.
Nowadays, Parliament is sovereign, it decides legislation (financial or not) and sits most of the time (permanently) whatever the King or Queen thinks.
The medieval situation until the beginning of the 17th century.
In the 16th and 17th century a succession of absolute monarchs reduced Parliament
to an instrument of the Royal policy and particularly an instrument to levy taxes. Parliament was only summoned when the King needed money and not at all to discuss foreign or home policy. The discontent of Parliament resulted in a civil war and revolution, and the execution of Charles the 1st (1649) and the instauration of the Republic.
The Republic was of short duration. In 1660, the restauration took place, the monarchy was re-established but it was no longer the same monarchy. Its powers were defined and limited by Parliament and the powers of Parliament were affirmed, especially its rights to meet regularly and to discuss not only financial questions but also questions of home and foreign
The rest of English and British history will be a consolidation of the powers of Parliament.
On the occasions of the glorious revolution (1688-89) the Parliament obliged James II to abdicate and will replace him by William and Mary of Orange. They were obliged to accept the Bill of Rights of 1689 which further limited the Royal power and reaffirmed the Parliament power.
The Bill of Rights forbade (interdit) the monarch to suspend or refuse to apply an Act of Parliament, to levy Taxes without the consent of Parliament and to gather an army in peace time. It also granted members of Parlamen (MP's) freedom of speech and stipulated that the House of Commons should meet regularly and could debate on any subject.
SECTION 2 :Parliament today
It is still composed of 2 Houses :
-the House of Commons (lower)
-the House of Lords (upper)
together they form the Houses of Parliament located at Westminster.
1.Composition of the House of Commons
It is composed of 659 MP's as a result of general election of May 1997.At the 1997 general election the Labour party won a large majority of seats so that the House of Commons is dominated by a Labour majority; the Government has a Labour majority with Tony Blair as Prime Minister.
MP's are necessarily UK citizens over 21 who are not disqualified to stand for Parliament. MP's are elected at most every 5 years at universal suffrage by all UK citizens over 18 (under the 1969 Representation of People Act) . They sit mainly to answer questions raised by other MP's on their policy.
Government members (or ministers) belong to the House of Commons and they sit at least 2 days a week.
The House of Commons is presided over by the Speaker normaly elected by all the MP's at the beginning of each new Parliament. But in practice, once a speaker is elected, he remains speaker until his retirement or death.
A change in the majority in the House of Commons does not mean a change of speaker (he is above party politics). For these reasons, the speaker does not profess any political opinion during the debates. During the debates, he does not vote but has a casting vote (une voix prépondérante) in case the 'yes' and the 'no' are in equal numbers. At a general election,the speaker is a candidate without affiliation to a party. He simply stands for Parliament as
the speaker seeking reelection.
2.The House of Commons at work
a. Parliamentary sessions.
The life of a Parliament is fixed by law at a maximum of 5 years. In practice, Parliament lasts on average 4 years : the goverment usualy dissolves the Parliament when the circumstances are favourable and when it thinks it will renew or even strengthen (reinforce) its majority.
The life of Parliament is subdivided into 5 Parliamentary sessions, each Parliamentary session lasts about a year : from October to October. Nowadays, the ceremonies of prorogation and opening of the Parliament takes place on the same day. In practice, a session is composed of some 160 to 180 sitting days. Each session is opened by the Queen in solemnity . Only the Queen can summon Parliament and dissolve it.On the opening of the session the Queen delivers the speech from the Throne, in this speech she sums up the work accomplished by the Government during the past session, then she announces the
Government's intentions for the new parliamentary session, in particular the Bills which the Government plans to introduce (the speech is not written by the Queen but by the Prime Minister or the cabinet).
The speech from the Throne is followed by a general debate of both houses of the Parliament on questions of home and foreign policy called :'the Grand Inquest of the Nation'.
After this debate,the Commons can start its day to day work, 3 main activities :
- law making (50%)
- control of Government expenses (30%)
- control of Government work (20%)
The control of the Government work which consists in questions asked by MP's to Government members ,although it takes less time, is very important for it gives rise to violent debates and can result in a vote of no confidence /censure and in the fall of the Government.
b. Daily work in the House of Commons
Sitting days take place from Mondays to Fridays mostly in the afternoons and evenings. Sometimes there are full night sittings. The mornings are devoted for each MP, to the reception of his constituency (circonscription).
- Question time : each sitting day begins with a 45 minute period devoted
to the questions which MPs ask to Government members. These 45 minutes are the means for the electors to voice their grievances and questions through their representatives (MPs) and also to obtain information of some aspect of the Government's policy. Those questions bear on the way in which the Government applies the laws and fulfills its electoral promises. Ministers must answer the questions (ministers do not sit everyday but they must take turns to answer questions. The Prime Minister, for his part, must be present on Tuesdays and Thursdays to answer questions. If a question raised by an MP is a national or urgent issue, the Speaker will adjourn the sitting day and the Commons will devote the sitting day to the discussion of that question.
Question time might be thought to be the occasion for the opposition to embarrass the Government and possibly to defeat it. But it is also the occasion for MPs belonging to the majority to ask questions which will enable the Government to expose its policy in details.
- Motions : most of the work of the House of Commons is done by way of motions which are proposals proposed to the House of Commons by one of its members. In case of approval of a motion, the House of Commons votes either an order by whitch it commands a Civil Servant to do something, or a resolution by whitch it expresses its opinion as a corporate body. Any MP, wether or not he belongs to the majority, can propose a motion. Each motion involves a debate during which only the official Speakers (or Front Benchers) of the majority and of the opposition (the Back Benchers very seldom (rarement) take part in the debate). After the debate on a motion, usually the House of Commons proceeds to a division to vote. All MPs leave the House those who are in favour of the motion enter through the Government lobby or Ay lobby and those who are against the motion enter through the opposition lobby or No lobby. Motions are used by the Government to have the Commons approve its policy, in so far as normally the Government holds the majority in the Commons. Sometimes, even members of the majority disagree with a motion and the motion obtains a vote of no-confidence by which the Government is put in a minority, it is then obliged to modify its policy or to resign.
c. The Law-making process
The process of legislation constitutes the major part of the work of the Commons. If the process of legislation is done at 90% by the House of Commons, the Commons are not the legislative body.The legislative is composed of the Commons + the Lords + the Monarch.
The first step of the legislation process is the bill. There are 4 categories of bills :
2-private members bills.
Public bills are bills at the initiative of a member of the government, aiming at modifying existing legislation in the UK. Most of the time such bills are the implantation of the policies of the party which won the elections and which is now in office. Very often they are the implantation of the electoral promises made by the party in power.
For example : In 1945 the Labour Party had been elected on a program of social services in 1946 it introduced a bill which became the National Health Service Act.
Private members bills are bills at the initiative of any member of the Parliament (Commons or Lords). They too aim at changing the legislation in force in the UK, but most private bills do not go any further than their first reading because they are not ensured by the support of the majority in the House of Commons. Although many private members bills fail, some very
important acts were originally introduced by private members. This was the case for the Murder (abolition of death penalty)1965 or for the Abortion Act.
Private bills differ from public bills and private members bills in their scope.They concern either the status of an individual (personal bills) or the status of a place or region (local bills). Personal bills are rare nowadays and must be initialized by the House of Lords.
Hybrid bills combine characteristics of both public and private bills. They aim at changing the legislation for the whole UK, but they affect only individuals or specific groups. For example : the British Museum Act 1964 and the Seven Bridge Toll Act 1965 are hybrid bills.
We shall concentrate on the law-making process concerning public bills which when voted, become statutes (=laws).
The first stage for a public bill is its introduction in the House of Commons :
- The first reading : that occasion is a mere (simple) formality, only the title and the name of its author are mentionned before the Parliament (no debate and no vote). A public bill is introduced only after approval by the cabinet. If there is no opposition on the part of the House of Commons, the text of the bill is printed and distributed to all MPs.
- The second reading: (the MPs have read the text) the minister who drafted the bill presents it before the House of Commons. He explains it and justifies it. A debate follows, it is limited to the aim of the law, to its risefulness and to the means necessary to implement it (mettre en œuvre).The debate is followed by a vote (by division). Many bills don't go beyond the second reading.
If the Commons approve of the bill, it is sent to the Committee.
- The Committee stage: the bill is handed over to a committee which checks that the bill doesn't contravene existing laws and which proposes amendments to improve the project. Standing committees can examine any sort of laws but only the Committee of the whole House can examine financial bills.
- The report stage: the President of the Committee presents a report before the House of Commons. A debate follows both on the contents of the bill and also on the amendments suggested by the Committee.
- The third reading: the House of Commons proceeds to the final examination of the project, then votes by division.
If the 'NO' prevails, the bill will not become a law.
If the 'YES' prevails, the law-making process continues and the bill is sent to the House of Lords.
- The approval by the House of Lords: it is a mere formality because since the Parliament Act of 1911&1949, the House of Lords can only delay the passing of a law by a year (and it cannot delay at all the passing of a financial bill).The House of Lords can propose amendments which must receive approval of the Commons. After a year, even though the House of Lords still oppose it, the bill is sent to the Monarch for the Royal Assent.
- The Royal Assent: before a law can be promulgated the Monarch must give his assent. The Royal Assent is nowadays a mere formality: since 1707 no King or Qeen has refused his or her assent to a legal text voted by both Houses.
Once promulgated the legal text becomes an act of Parliament or a statute. A statute can come in force either immediatly on its promulgation or at a later date indicated in the text. According to the Community, a statute is applicable either to the whole UK or to England and Wales with slightly different versions for Scotland and N.Ireland.
As a conclusion, the House of Commons is the most important element in the law-making process.The House of Lords being relegated to a symbolic role nowadays.
3. The composition of the House of Lords.
The House of Lords is composed of some 1300 members or Lords, divided into
2 categories :
- the Lords spiritual: they are a survival of the past (of the times when the Church was all-powerful and the Kings main advisers and ministers were high-ecclesiastics). There are 26 Lords spiritual: 2 Archbishops (York and Canterbury) and 24 Senior Bishops (Church of England).
- the Lords temporal: they are over 1200 and they are of 3 sorts: the hereditary peers (dukes, barons, earls, viscounts…) they are 788, about 2/3 of them sit in the House of Lords; the life peers of more recent creation have existed since the Life Peerage Act 1958, they are 365, they are people who were rewarded for services offered to the Crown, their title doesn't survive them, all former Prime Ministers become automatically life peers.
- the Law Lords are appointed for life by the Monarch upon a recommandation of the Lord Chancellor. There are only 11 law Lords plus 11 retired law Lords who cannot sit as judges, but who still continue to sit at the House of Lords. The law Lords are former judges of the Court of Appeal or former famous baristers.
In theory, any Lord can sit in the House of Lords, but in practice, only the life peers and the law Lords take an active part in the proceedings of the House of Lords.
In 1963, the Peerage Act was voted to allow hereditary peers to renounce to their titles in order to stand as candidates for the House of Commons and to take an active part in the political life.Thus in 1963, Lord Home renounced his title to become Sir Douglas Home, he became MP and could then be appointed Prime Minister of the Conservative Government formed in 1964.
4. Daily work of the House of Lords
a. Sitting days :
The Lords sit about 120 days each year.
The main characteristic of the House of Lords is the absenteism of its members. On important debates or on voting days, there are rarely over 300 members in the House. On normal days, the average is 30, and the quorum is only 3 (3for a debate and 30 for a vote). Some Lords, especially among hereditary peers, never attend and only turn up (apparaître) for the opening of the Parliament by the Queen.
Although the majority of ministers are issued from the majority in the Commons, the Lords are also represented in the Government by the Speaker of the House of Lords who is automatically responsible for justice and a member of a cabinet, he is the Lord High Chancellor (minister of justice).
Contrary to the Speaker of the House of Commons, the Speaker of the House of Lords takes part in the debates and votes, and defends the policies of the party to which he belongs. It is to be noted that the party system exists in the Commons, although many hereditary peers insist on belonging to no party.
b. The functions of the House of Lords :
- Legislative functions are very limited.
Although most public bills are initiated by Government in the House of Commons, in theory the House of Lords can introduce bills except financial bills.
In practice, it initiates mainly private bills and occasionnally private members bills and hybrid bills.
Most of the time the House of Lords contents itself with examining and voting on bills already examined and passed by the Commons or proposing amendments.
- Judicial functions.
Although in the past the ultimate Court of Appeal of the Kingdom was the whole/plenary House of Lords, today it is composed of the eleven law Lords.
The main function of the House of Lords, as a judicial body, is to be the ultimate Court of Appeal for the UK.
CHAPTER 2: English law
SECTION 1: Statute law or the law elaborated by Parliament
English law has suffered an important evolution.
Traditionaly statute law represented only a limited part of the law and statute law consisted mainly in case law (both Common Law and Equity). Nowadays the situation has changed radically, in the 20th century and especially since World War 2, statute law has played a more and more important role /part.
Statute law has developped in an unprecedented way, first the economic development of Britain resulted in a proliferation of legislation in the fields of commerce and contracts, secondly on the accession to power of the Labour party in 1945 the Government enacted a number of laws aimed at regulating the economy and creating a welfare state. It thus passed the National Health Service Act and a number of other acts regulating the relationships between the individuals and the state.
Today, statute law plays a preeminent part and in case of conflict of law, statute law prevails.
The only difference between statute law and written law in continental countries like France or Germany is to be found in the application of the law: English judges having an important power of interpretation of the law.
The word law covers :
1.Acts of Parliament properly speaking.
2.Delegated legislation which consists in the application of statutes
The UK does not have a written constitution, the only one in Britain history was the one drafted by Cromwell in 1653 called the Instrument of Government. That constitution which was in force during Cromwell's Republic or Common Wealth was abolished in 1660 on the restauration of the English Monarchy.
What the English call their constitution is a body of rules (some written, some non written) and traditions which guarantee the fundamental liberties of the Brittish citizens and which limit the power of the Government.
Parliament is the only body to enjoy unlimited power.
Britain has no constitutional body which can check the validity of the laws (statutes) adopted by Parliament. The only check on Parliament is the control exercised by public opinion and by pressure groups.
1. Classical theory in English law.
The traditional approach of statute law was that statutes were a secondary source of law.
Statutes were regarded as complements wich filled the gaps of the main body of law, namely caselaw, or which corrected the errors of caselaw or which updated rules of law which have become obsolete.
From the 13th to the 19th century, statute law was regarded as an appendix to the law.
In the 17th century, English judges still refused to apply the laws adopted by Parliament and prefered to apply the rules of law established by previous judges in previous decisions.
The traditional approach was strictly a caselaw approach.
2. Nowadays theory.
In the last 100 years and more especially since the end of World War II, legislation has taken much more importance.
A number of statutes simply modified, simplified and updated existing rules of law as produced by common law and equity.
With the change of regime and the instauration of socialism after 1945, a number of statutes were passed reflecting the new relation between individuals and the State and also creating new sectors of the public and social life in the UK.
The second type of statutes aimed at building a new type of society at the economic and at the social level.
Thus, in 1946 the National Health Service Act instituted free medical care for all citizens.
The first type of law aiming at simplifying existing rules of law established by common law or equity decisions were reinforced by an act of 1965 entitled Law Commission Act .
This act instituted two law commissions :
One for England and Wales and one for Scotland.
The object as defined by article 3 was the codification and simplification and modernization of the law for each system of law.
CHAPTER 3 : The common law.
The term common law has a variety of meanings depending on the context.
Taken in its broadest ( le plus large)meaning, it means unwritten law as opposed to statute law or written law.
Historically, it means the law common to the whole kingdom as opposed to the law specific to a region or category of persons.
Historically too, for a long time, it meant secular law as opposed to canon law or ecclesiastical law.
Historically again, it meant the law of Anglo-Saxon origin or Norman origin, as opposed to the civil law derived from (the) Roman law.
Last, more technically, it is the category of law which is neither statute law, nor equity.
The term common law appeared for the first time in the thirteenh century.
1-Originally, the components (composants) of the common law were first the rules of law based upon (basé sur) the Anglo-Saxon concept of folgright as defined in the laws of Edward 1st.
2-Customary law based upon rights established by immemorial usage.
3-The day to day decisions of the court or caselaw.
Given those components, the usual definition of common law is the body of law, judicially evolved from the general custom of the realm (royaume).
The Anglo-Saxon period : until1066.
Formation of the common law: 1066-1485.
Expansion of the common law and rivalty with equity :1485-1832.
Modern period, preeminence of statute law : from then to nowadays.
History of English law can be devided into four main periods.
Until 1066, Norman conquest.
1066-1485, accession of Tudor dynasty.
1485-1832, beginning of Tudor absolutism to first electoral reform.
1832-today. Common law has to face the preeminence of statute law.
I From the beginning to the Norman conquest.
The history of Anglo-Saxon law is not well known.
The only thing we know for sure is that in spite of four centuries of Roman domination, nothing remains of the Roman law in English law.
We know that in the days of Anglo-Saxon rule (domination), a number of laws were drafted in the VIth andVIIth centuries.
In those days, different tribes (tribus) ruled over England, all of German origins.
Contrary to the other laws of the time, Anglo-Saxon laws which varied from one hand of the country to the other hand were not written in Latin but in Vernacular (i.e. in Anglo-Saxon dialects).
Like the other laws of the time, Anglo-Saxon laws governed very limited aspects of social life.
On the eve of the Norman conquest, Anglo-Saxon law continues to be different in the different parts of the country.
Just before the Norman conquest, three sorts of Anglo-Saxon law existed.
Dane law was applied in the coastal areas of the North and North-East of England.
Mercian law influenced by german law was applied in the central region of the Midlands.
Wersen law was applied in South and West of England.
The law on the eve of the conquest was administered in three types of courts.
County courts or shire courts were presided over by the sheriff representing the King, the bishop and the oldest free man. They only sat twice a year.
The hundred courts were smaller courts : A hundred was an administrative division including some 100 inhabitants ; each county was divided into several hundreds.
The franchise courts were courts of exeption, constituted by persons authorized by the King to administer justice.
All these jurisdictions were competent both for civil cases or for criminal cases.
II Formation of the common law 1066-1485.
The Norman conquest did not immediately put an end to the Anglo-Saxon legal system.
The Normans took over Anglo-Saxon law and transformed it.
The Norman power was a military type of administration. The Normans felt the necessity of controling the whole country and unifying the country.
The birth of the common law came from this necessity to unify England and to submit it to one rule.
Justice was still rendered in the three types of courts which existed before.
But gradually, the Lords obtained from the King permission to set up their own courts of justice. So that, in parallel to the old Anglo-Saxon courts, new courts (baronial courts or manorial courts) were created.
This new jurisdiction continues to apply the customary law which existed in Anglo-Saxon law.
In parallel to the other courts, ecclesiastical courts were set up, applying canon law.
The ecclesiastical courts were competent for cases involving the clergy and for matrimonial and family cases.
After the conquest, ordinary disputes are brought before the old courts (county and hundreds) or before the new baronial or matrimonial courts, or before the ecclesiastical courts.
The king only renders « high justice » i.e. he only judges exceptional cases.
When the peace of the Kingdom is threatened, when important personalities are involved, when the ordinary courts cannot hear the case.
He judges with the help of his main barons, in his council or Curia Regis.
The King's justice is not opened to everyone.
It is limited to important men and disputes.
For ordinary cases, the King sends representatives of his council who attend to the hearing (audience) of the various courts throughout the country.
Three commissions :
Commission of gaol delivery (jail).
Commission of oyer and terminer.
Commission of Assizes.
The King's representatives or royal judges gradually formed three commissions.
The commission of jail delivery whose task was to set free all untrialed prisonners.
The commission of oyer and terminer whose judges must hear and decide cases involving the most serious offenders like traitors and felons.
The commission of assizes whose judges are competent for civil cases and serious criminal matters.
Those royal judges who go from court to court throughout the country were called « itinerant judges » and later « circuit judges ».
They are appreciated by the population because they are above local quarrels and interests they make sure that justice is rended in a fair, non corrupt and unprejudiced way.
At the same time, as he sends representatives to those various parts of the country, the King appoints some of his advisers from the Curia Regis to form a commission which sits at Westminster.
At that commission, the itinerant judges also meet on their return from the country. There they discuss the various customs and decisions which they met for similar cases in the different parts of the country.
They reject those customs and decisions which are absurd, obsolete or unfair and they keep those which seem reasonable and grounded (fondées, grounds=motifs).
This made a first unification of customary law into a body of law which was uniform for the whole kingdom.
The growth of the common law met the opposition of the Lords, of the barons and knights who resented the intervention of the royal judges in the local courts because it meant a loss of power for them.
The Lords imposed on the king that royal judges should limit their interventions to three types of cases.
Cases of royal finances.
Real estate property cases.
Offenses against the state.
To hear these three types of cases, three courts were instituted at Westminster.
The court of the Exchequer which was to decide disputes relative to royal finances.
The court of common please was competent for real estate property cases.
The court of the king's bench was to judge offenses against the state.
In the compromise between the king and the barons, it was accepted that all other cases would remain under the jurisdiction of the old courts and especially of the baronial and ecclesiastical courts.
At the end of the Middle-Ages, in the fourteenth and fifteenth centuries the King's power was strengthened.
Royal justice grew as the King's power grew.
At the end of the fifteenth century, the royal courts of justice have almost the monopoly of justice.
The ecclesiastical courts only judge disputes relative to the clergy or to the sacrament of marriage.
The royal courts now judge all types of cases.
In spite of this extension of their jurisdiction the royal courts of justice were checked in their development by the rigidity of the common law procedure.
In particular the development of the common law was limited by the «writ» system.
The writ was an official document signed by the Lord Chancellor ordering the sheriff to summon the defendant to court at the request of the plaintiff.
Writs were delivered only for a limited number of cases or actions.
It was delivered for :
Writ for trespass (atteinte à autrui).
Writ for debt.
Writ for detenue.
The most frequent writs were writs for trespass, when the defendant had enclosed part your estate in an abusive way.
The writs for detenue, i.e. illegally holding somebody else's property.
In fact, it was very difficult to obtain one from the chancellery.
New type of writs.
In the beginning it was the Lords who obliged the king to limit the list of writs.
Gradually, the list of writs increased. New writs were created.
But in spite of the extension of the number of writs, the list of writs remained limited until the niniteenth century, so that plaintiffs could not bring an action for any dispute ; so that many plaintiffs were left without any remedy.
A second reason why plaintiffs were left without a remedy was the rigidity of the procedure.
«Remedies preceed rights» is often said in English law. It means that people have no strict legal rights, but only the rights existing through the procedural formes.
Each writ was accompanied by a strict procedural form and the plaintiff who did not follow the appropriate procedure lost his case.
The slightest mistake in the spelling of a name or in the small details of the facts resulted in the dismissal of the case, so that again many plaintiffs were left without remedies.
It was only in the nineteenth century with the Judicature Acts (1873 and 1875) that it became possible to obtain a writ for any type of case and that the procedure became less rigid.
The Judicature Acts put an end to the limitation on the common law.
The royal courts became ordinary jurisdictions which could hear and judge any sort of case.
Also, the royal courts could now apply not only the rules of common law but also the rules of equity.
CHAPTER 3' : Equity.
It covers a number of meanings.
In its broad and popular meaning, it means natural justice and moral justice and is a synonym for the French «équité».
In its narrow (étroit) and technical meaning, for Englih lawyers, it means a number of rules and legal principles which are a complement to the main body of legal rules of the common law.
Equity was born as a complement of the common law and not as a rival body of law.
Decision Lord Dudley versus Lady Dudley (1705)
Def. Equity is no part of the law but a moral vertue which qualifies moderate and reforms the rigour and hardness of the law.
It also assists the law where it is defective and weak and defends the law from crafty evasions, delusions and subtleties invented to evade and delude the common law.
The common law was limited in its role by the rigidity of its procedure and the restricted actions which the royal courts could hear.
When a plaintiff was faced with a miscarriage of justice (deni de justice) his only hope was to petition the king for redress.
The King exercises his power as sovereign justiciar.
As the number of petitions increased, the King delegated his power as sovereign justiciar to his chancellor.
The King, then the Lord Chancellor judge the cases which were submitted to them on the bases of their moral conscience.
Both the King and his chancellor were regarded as able to judge in their moral conscience because the King was supposed to be the representation of God on earth and the Lord Chancellor was an ecclesiastic and spiritual guide for the King.
Under the Tudor and Stuart's kings in the XVIth and XVIIth centuries, equity grew all the more so as absolutism prevailed.
The Lords Chancellors were no longer chosen from among the higher clergy.
As their judicial tasks became heavier, the chancellors were also now lawyers who had been formed according to the principles of the common law.
The consequence was that the Lords Chancellors instead of following the inspiration of their moral conscience for each case began to apply the methods of the common law.
They followed the same principles and the same rules for similar cases.
The first Lord Chancellor to apply the method in equity was Lord Ellesmere (1586-1617).
Later Lord Nottingham (Lord Chancellor too) decided that this method would become a rule of equity so that he was called the father of equity.
Moral conscience remained important but the case was not analysed in depth anymore.
The work of classification begun by Lord Nottingham was continued by his successors so that any judge of the Court of Chancery applying equity had to follow the rules laid down by his predecessors.
From the seventeenth century the Lord Chancellor was helped by a Master of the Rolls who originally kept the archives or rolls of the Court of Chancery.
From 1729, the Master of the the Rolls became a judge in his own right. He heard the appeals against the decisions of the Court of Chancery.
Finally, in 1851, the court of appeal of the Chancery was created to help the Master of the Rolls in his tasks.
The classification of equity resulted in a certain rigidity.
The fact of following the same rule in similar cases created a uniformity similar to that of the common law.
And yet, equity even today is not a fixed system of law.
Equity is in a state of constant evolution in the name of moral conscience and moral justice.
Thus, in the last 50 years, equity has created a number of new principles :
For example a principle prevents a person from demanding the application of their strict legal rights if this would create a prejudice for innocent third parties.
III Problems created by the growth of equity.
To be entitled to bring an action in equity before the Court of Chancery, a plaintiff had to have been dismissed by a royal court in an action in common law first.
This meant that the plaintiff had to pay twice and to suffer long delays.
Even in the cases when the plaintiff's action was not dismissed, the common law often proved inadequate and its remedies insufficient.
In the case of inexecution of the contract, the royal court only awarded damages.
The plaintiff who wanted to obtain the execution of the contract had to bring a second action in equity before the Court of Chancery.
In the same way, in case of trespass, the court applying the common law only awarded the damages and the plaintiff had to go before the Court of Chancery to obtain an injunction by which the court ordered the defendant to stop the trespass.
Gradually, in the nineteenth century, the courts of common law began to apply not only the rules of common law but also the rules of equity in order to save the parties the cost of a second action. Yet such a practice was used only when the equity solution was easy to find by the common law judges.
In 1854 an act legalised that practice, the Common Law Procedure Act of 1854 empowered (habiliter) the courts of common law to issue injunctions.
A second act in 1858, the Chancery Amendement Act empowered the Court of Chancery to award damages in lieu of (au lieu de) a decree of specific performance.
But thes two acts gave only a limited solution.
It was only the Judicature Acts in 1873 and 1875 which operated a real administrative fusion of common law and equity.
The Judicature Acts group all the superior courts into one body : The Supreme Court of Judicature.
It was ordered to apply indifferentely the rules of common law or the rules of equity or both.
All parties were advantaged by the new system.
IV. The contribution of equity to English law.
A. Creation of new rights.
Equity created new rights by giving legal force to some rights which the common law refused to acknowledge.
The most important rights were uses and trusts, which were ignored by the common law and which equity acknowledges as early as fourteenth century.
The system of the trust was developped for historical reasons.
In the feudal system, when a lord went on war or on crusade, the risks were such that he entrusted his property to a trustworthy person who was to administer his property in the interest of his wife or his minor children who were all incapable act law.
But the common law did not consider that the promise of the trusty had legal force.
If the trusty was dishonest, the original owner of the property on his return or the beneficiaries of the trust were remedyless.
At common law, the trusty has become the new owner of the property.
Equity intervened and acknowledged of such promises and created remedies in case of non-execution of the trust.
The system of the trust still exists and is very much used today.
It still implies three persons :
The original owner, the trusty and the beneficiary.
Sometimes, the original owner and beneficiary are the same person.
Many charitable foundations also called charities or public trusts are administered according to the system of the trust by a group of trusties whose task consists in investing the properties and using the revenue to help a category of people like the elderly.
Apart from public trusts, there are private trusts which are used by families to administer their property.
B. Creation of new remedies.
Equity elaborated new remedies to enforce rights which were acknowledged by the common law, but for which the common law has inadequate remedies.
The most important remedies were the decree of specific performance in case of inexecution of the contract when damages were insufficient.
-The rescission or annulation of the contract.
If it created a prejudice for the other party or third parties.
-The rectification of the contract.
If the contract did not express the intentions of the parties.
-Injunction to put an inspector (or official receiver).
In case of bankruptcy to prevent the defendant from destroying or selling the property in liquidation.
It is to be remembered that all these remedies have discretionary characters.
They are used only in certain circumstances and are not obtained if the plaintiff has misbehaved.
C. Creation of new procedural forms.
In some cases, the common law procedure was not only too rigid but also deficient.
For instance, in some actions at common law the defendant did not have to (and sometimes was forbidden to) bring proof for his defense.
Besides, the royal judges limited their investigation to the parties without taking into account (prendre en compte) the interests of third parties.
Last, the common law did not oblige the parties to bring written proofs, which in some cases , like contracts, were necessary.
Equity introduced a written procedure that took into account the interests of third parties and obliged the parties to bring written proofs when necessary.
D. In case of conflicts.
In case of conflicts between the common law and equity, equity prevails under the Judicature Act of 1873, still in force (en vigueur) today.
V The maxims of equity.
Judges have a discretionary power to grant (accorder) or refuse equity remedies.
To obtain a equity decision, the plaintiff must not contravene (contredire) the principles or maxims of equity.
Equity follows the law.
Normally, equity does not go against the rules of the common law, or against statutes.
In practice, under the Judicature Act (1873), in case of conflict, equity prevails over the common law.
Yet, statutes prevail over equity.
«Equity acts in personam rather than in rem».
This maxime means that equity aims at defending persons and their rights rather than property.
The trust is a good example : Equity defends privately the rights of the beneficiary.
Equity acts on the conscience.
Equity does not care so much for the strict legal rights of the parties as for their conscience.
And it is in the name of moral conscience that equity intervenes, to oblige a party that misbehaved to respect this moral promise.
In the same way, it is in the name of moral conscience that the concept of contempt of court (mepris de la court) was invented.
In case of disobedience to an order given by the court of chancery, the defendant was guilty of contempt of court, and was obliged to obey by force.
For instance, he was kept in prison as long as he did not obey.
Equity looks to the intempt rather than the forms.
It means that contrary to the common law, equity does not refuse to grant a remedy because the procedural forms have not been followed.
Also, if the terms of the contract are not well formated, the parties will not be bound by them.
Who comes to equity must have clean hands.
A plaintiff who seeks an equity remedy must have acted in good faith in the case.
A plaintiff who wants to obtain a decree of specific performance of a contract will have to proof that for his part he has performed all his obligations.
Who seeks equity must do equity.
The «E» principle is about past actions of the person who seeks equity.
To obtain a decree of specific performance, the plaintiff must promise that he will fulfill all his obligations.
Equity will not suffer a wrong to be without a remedy.
Wrong (délit civil), offense (délit pénal).
These maxims sum up the spirit of equity and explain why it was born. It means that equity, which is an open source of law in constant creation, will always interfere, so that rights which are not protected by legislation or by caselaw will be protected.
VI Main sphere of application of equity today.
The Judicature Acts (1873-1875).
The Judicature Acts gave the Court of Chancery now called the Chancery division of the High Court of Justice competence in :
Liquidation of partnerships.
Redemption and forclosure of mortgages.
Exemption of trusts.
Rectification and rescision of contracts.
Specific performances of contracts.
Partition and sale of real estate property.
The rules of the Supreme Court.
They gave the Chancery division competence in all dispute concerning mortgages.
A number of more recent statutes.
They gave the Chancery division exclusive competence in matters of bankruptcy under the Bankruptcy Act of 1914.
Exclusive competence also in matters of company law under the Companies Act of 1948.
More recently, a number of statutes having extended the competence of the Chancery division to revenu disputes, town and county planning disputes and Landlords and tenant disputes.
CHAPTER FOUR : The rule of precedent.
One of the main differences between the common law legal system and the Roman-Germanic legal systems is to be found in their definition of the rule of law.
This difference corresponds to the respective importance of caselaw and legislation in the two systems.
Caselaw being regarded as the most important source of law in the common law system.
For English lawyers and their followers in other countries, the legal rules are to be found in the decisions of the superior courts, i.e. the decisions of the Crown Court for criminal cases or the High Court for civil cases; The decisions of the court of appeal and the decisions of the House of Lords.
Both the Court of Appeal and the House of Lords take civil and criminal decisions.
More precisely, the rule of law is to be found in the most important part or core (cœur) of the decision called «the ratio decidendi».
An English decision consists in the statement of the facts of the case, the list and analysis by the judges of the different statutes and precedents relevant of the case and the discussion of them and final rejection(s), these are called the «obiter dicta» and finally, the ratio decidendi in which the judges explain the reason for their decision and the rule of law which they have followed.
The rule of law adopted by the judges can be the same rule of law as in a precedent or it can be a new rule of law in which case the judges will explain why they modified this rule of law and created a new one.
One of the clearest definitions of the ratio decidendi is : The application of the legal rule to the material facts of the cases.
Only the ratio decidendi contains the legal rule, the obiter dicta are never regarded as legal rules.
The specificity of the English legal rule is that it is designed to give a solution to a case caracterised by specific facts.
English lawyers do not look into statutes to find rules of law and they apply legislation as interpreted by previous judges.
The English legal system is a caselaw system in which the decisions of the courts replaced the provisions (dispositions) of the law.
The difference between the rule of law in the Roman-Germanic systems and the legal rule in the English system is sometimes explained in terms of a closed system as opposed to an open system.
The Roman-Germanic systems are closed systems which make a coherent whole in which any question can be solved by interpreting a provision of the law.
English law is an open system which does not have rules applicable to all cases.
To solve a case, an English judge examines the rules of law contained in existing precedents and adapts them to the facts of the case.
If the facts of the case are the same as those precedents, the judge will apply the same legal rule.
If the facts are different, the judge will distinguish the present situation from the the previous one, and will adapt the previous rule to the fact of the case.
Thus, creating a new legal rule, that is why English law is called judge made law.
I Operation of the rule of precedent.
In a system based on caselaw, judges are obliged to apply the decisions laid by their predecessors.
But, all predecessors do not have the same value or the same weight.
Their weight depends on the rank of the court in the judicial hierarchy.
The judicial hierarchy was established by the Judicature Acts (1873-75).
At the top of the hierarchy is the House of Lords, whose decisions are binding on all lower courts in the hierarchy.
Until 1966, the House of Lords was itself bound by its own precedents, but since that date, it has been able to reverse its own decisions.
The High Courts and Crown Courts are binding for inferior courts.
The inferior courts are bound by the decisions of the superior courts but they are never bound by their own decisions.
The European Court of Justice.
Since Britain entered into The European Community in 1972, the decisions of the ECJ are binding precedents for all English courts for under the European Community Acts and under the article177 of the Treaty of Rome. European law is now part of English law.
Nevertheless, if the same point of law is brought a second time before an English court and if the court does not wish to apply the precedent established by the ECJ, it can take the case before the ECJ again, as the ECJ does not apply the rule of precedent and is not bound by its own previous decisions.
It can sometimes obtain a new decision which is then bound to execute.
II The persuasive precedents.
The only precedents which are binding are those laid by the Superior Court.
The decisions rended by other courts like the inferior courts or by prior judicial bodies like the administrative tribunals are never binding.
Yet, they may have a persuasive value and can be used as precedents by judges.
The decisions that can be persuasive precedents are :
1-Decisions from a court which is lower in the hierarchy than the court which must decide the case. For example, the civil division of the CA is not bound to follow a decision from the high Court of justice.
But it cannot do so if the decision is especially to the point.
2-Decisions from a court of another common law country can be used as a persuasive precedent by an English judge.
Thus, decisions from a high court of Australia or some decisions from the American courts have been used as precedents to solve several English cases.
3-Decisions of the judicial commitee of the Privy Council also have a persuasive value.
This court does not belong to the English judicial hierarchy.
It is the ultimate appeal against a decision by the highest court of a Commonwealth country.
Normally, as it does not belong to the judicial hierarchy, its decisions should not be binding precedent for the English courts.
But because the judges who sit in the privy Council are the law Lords who normally sit in the House of Lords, its decisions are regarded by English judges as persuasive precedents.
III Limitations to the rule of precedent.
The technique of distinction.
In theory, the rule of precedent is absolutely binding on all English courts.
In theory, the only remedy to avoid a binding precedent which is unfair or obsolete, is to introduce a bill and to have Parliament pass legislation on the question.
Because of the sovereignty of Parliament, the new act will prevail on caselaw.
But this is a very long process.
In practise, English judges can avoid applying the rule of precedent through the technique of distinction.
They can pretext that the case before them is slightly different from the previous text to modify the rule of law and create a new rule of law.
The publication of precedence.
The scope (portée) of the rule of precedent is also limited by the process of selection of precedents before they are published.
All the decisions of the superior courts are not published.
Those decisions which only apply to law applicable to the case, when the law is obvious and those decisions which are not clear and which can be criticized are not published.
The law reports contain only about : 75% of the decisions of the HL (i.e. some 30 DC every year)
25% of the DC of CA.
10% of the HC anc CC.
Chapter 5 : The competence of the courts.
English law does not differ from other systems of law in its distinction between civil law and criminal law.
English civil law includes C law, the law of tort, family law and the law of property.
It governs the relation «rights and duties» of individuals and the disputes between individuals. In most civil cases, the plaintiff sues the defendant to obtain damages for that he suffered. Such a lawsuit is judged before the civil court and its jurisdiction.
English criminal law on the contrary is the State's response to violation and contravention of the law.
In the extent where the State must preserve public order, it is the duty of the State to punish all offenses and all those who break the peace.
Thus, the State prosecutes the accused who if they are found guilty will be sentenced to pay a fine or to serve a prison sentence.
The criminal courts have jurisdiction over such criminal cases.
The problem of English law is that some courts have jurisdiction both over civil cases and criminal cases.
I Competence of the civil courts.
The magistrate's courts.
The magistrate's courts are for the most part composed of laymen, i.e. non professional judges who volontary accept to sit as part time judges for minor cases.
The civil jurisdiction of a magistrate's court is limited. They decide in actions in recovery, epecially for such debts to official or quasi-official bodies as income tax, national insurance contribution, water, gas or electrical charges.
They also decide domestic cases such as separation, maintenance (pension alimentaire), affiliation, gardianship of infants (tutelle) and adoptions.
Decisions of the magistrate's courts in such dispute can be appealed against before the family division of the High Court of Justice.
The magistrate's court also have jurisdiction over liquor licences, over betting licences and over theatre licences.
For licences, appeals against the decision of the magistrate's court must be brought before the Crown Court.
The county courts.
Most disputes when the amount at state does not exceed £5000.
Action in recovery of land when the net taxable value of the land does not exceed £10 000
Disputes to which equity applies such as dispute about trust, mortgages or partnership. The amount at state does not exceed £30 000.
Litigious probate matters when the amount at state (property of the deceased) does not exceed £30 000.
Undefended divorces and related problems of maintenance and custody (garde) and also under the 1984 Matrimonial and Family Proceeding Act, some defended divorces.
Disputes relating to company winding-ups when the paid up capital does not exceed
£ 15 000.
Disputes about prizes when the amount claimed does not exceed £5 000 and about salvage when the amount does not exceed £15 000.
Disputes relative to consumer credits when the amount does not exceed £15 000.
All cases normally under the jurisdiction of the High Court (i.e. when the amount at state exceeds the above-mentioned sums). Also when, the parties to limit the costs and delays agree to have the case judged by a county court.
Cases of bankruptcy without any limitation.
Disputes relating to fair trading regulation.
Cases of hand registration.
Dispute with local government authorities.
Race relations cases.
Cases of river pollution.
All cases relating to rents (bill) and to hire-purchases (location-ventes) for which the county courts have exclusive jurisdiction.
Normally, the jurisdiction of the county courts is limited to the county itself, except for cases of bankruptcy.
Except for bankruptcy, appeals of points of law against a county court decision go directly before the civil division of a court of appeal.
For bankruptcy, cases such as appeals must be brought before the Chancery dividion of the court.
The High Court of Justice (HCJ).
The HCJ was instituted by the Judicature Acts (1873-1875).
In theory, there is only one HCJ located in London.
In practise, there are sessions in the provinces in some 25 provincial trial centers called first tier centers of the Crown Court located in the main provincial towns.
The HCJ is composed of three divisions.
The Queen's bench division.
The Chancery division.
The family division.
It normally judges as a first instance jurisdiction, but it can also be appelate jurisdiction to judge appeals against DC or inferior courts.
Although in theory, any division of the HCJ can have jurisdiction over any type of case.
In practise each division is specialized and has its specificity.
This specialisation was confirmed by the Supreme Court Act of 1981 which listed the specific jurisdiction of each division of the HCJ.
The Queen's bench division.
The Queen's bench division has a very wide jurisdiction both original and appelate and both civil and criminal.
As an original jurisdiction, it has unlimited jurisdiction over all civil cases.
It judges most of the time property cases, cases of break of contract, cases of break of duty (responsabilité extra contractuelle) and cases of tort.
The Chancery division (CD).
The CD is the direct heir (héritier) to the medieval court of chancery.
It has jurisdiction only over civil matters. It sits mainly as a first instance court with a single judge.
Its jurisdiction has been confirmed by the Supreme Court Act of 1981.
It is very wide and covers :
The sail and partition of land as well as charges on lander property.
Administration of the estate of deceased persons and litigeous probate matters.
Execution of trusts.
The redemption and forclosure of mortgages.
Dissolution of partnerships.
The specific performance, rectification, setting aside and rescission of contracts.
Patents, trade marks, registered designs and copyrights.
Appointment of gardians.
More recent legislation has also given the Chancery division jurisdiction over :
1) Disputes rel ating to revenue claims.
2) Towns and country planning problems.
3) Landslord and tenant disputes.
Mental Health Act 1983 gave the Chancery jurisdiction over disputes rela ting to the estate of mental patients.
Although the Chancery division is mainly an original jurisdiction it can sometimes sit as an appelate court.
With a single judge, it can hear income taxes appeals against decisions of the Commission of England's revenue.
With two judges, it can sit as divisional court of the Chancery division and hear appeals against decisions of the court in case of bankruptcy and land registration.
3. The family division.
The family division has jurisdiction over all domestic and family cases.
Its jurisdiction was confirmed by the 1981 Supreme Court Act.
Under the Supreme Court Act of 1981 :The family division has jurisdiction over :
All matrimonial cases for which it is empowered to grant decrees of divorce, decrees of nullity (annulation de mariage) or decrees of judicial separation.
All cases related to children such as cases of legitimacy, cases of custody or guardianship (tutelle), of maintenance and right of access (droit de visite), of affiliation and cases of adoption.
It is also competent for non litigious probate matters
Applications (demandes) for marriage of a minor.
The family division is a first instance court but it can hear appeals of the county courts in affiliation cases, adoption cases or questions of maintenance.
The court of appeal: civil division. The court of appeal as a whole is composed of the Lords High Chancellor, the Master of the Rolls and 23 Lords Justice of appeal.
In theory it is presided over by the Lord Chancellor but in practice by the Master of the Rolls.
Under the Supreme Court Act of 1981, the number of the Lords Justice of appeal cannot exceed 23.
The division of the Court of appeal into the Civil Division and the Criminal division dates back to 1966.
To sit as a court, the civil division must be composed of at least 3 judges (or sometimes 5 and sometimes 7). The civil division can hear appeals against the decisions of the High Court.
The appeals can bear on the facts or on the points of law.
The technique of the appeal before the court of appeal consists in the rehearing of the case which simply means that the civil division re-examines the case in full on the bases of the minutes of the High Court trial.
The civil division sometimes hears appeals against decisions of the county courts when the appeals bear on points of law, according to the “Legs Frog procedure”.
In the 20th century only the House of Lords has retained judicial functions which were formerly shared with the House of Commons.
Until the end of the 19th century any lord could sit and decide on cases submitted to the House of Lords. The Appelate