Comparative Law Spring 2002 Professor Susanna Fischer ENGLISH LEGAL SYSTEM ENGLISH LEGAL PROFESSION...

Comparative Law Spring 2002Professor Susanna FischerENGLISH LEGAL SYSTEMENGLISH LEGAL PROFESSIONApril 8, 2003

Plan for Class

Some basic concepts about common law systemsSome English legal historySources of law in English legal system (case law, statute, delegated legislation, custom, equity, treaties, EU law)We will not focus on EU law in this class even though in some ways it can be seen as the highest source of law

Wrap-Up: English Legal History – Development of Common Law/Equity

Remember that equity is based on fairness and natural justiceAlso remember that equitable remedies are discretionaryWhat are some famous maxims of equity?

What are Some Famous Maxims of Equity?

He who comes to equity must come with clean handsEquity will not suffer a wrong to be without a remedyDelay defeats equity (e.g. laches)Equity looks to the intent rather than the form

18th and 19th Century Problems with Court of Chancery

Overburdened with workThis led to horrendous delays – see Charles Dickens’ Bleak House

Separate Courts Survived Until the Late 19th Century

Despite conflicts over jurisdiction (resolved in the case of law/equity in Equity’s favor in 1615), all these separate royal courts survived for centuries until in the 1870s, they were merged into the present High Court of Justice by the Judicature Acts (1873-1875).Many of their names survive to this day in the English legal system

Not a Total MergerAlthough the Court of Queen’s Bench (which is the merged court for the 3 royal courts of King’s Bench, Common Please, and Exchequer) and the Court of Chancery are administratively combined into 2 divisions in th High Court, the Queen’s Bench and Chancery remain separate jurisdictions with separate judges and a distinction in work, and somewhat different procedure.All courts now administer both common law and equity.

The High Court of Justice

Queen’s Bench DivisionChancery DivisionProbate, Divorce, and Admiralty Division (separate divisions because under the old system wills and divorce were ecclesiastical and there was a separate admiralty court) – in 1970, this was redistributed (e.g. Admiralty to Queen’s Bench Division) and a Family Division was established.

Appellate Courts1873-75: Creation of Civil Court of Appeal. Intention was to get rid of the judicial division of House of Lords, but House of Lords as final court of appeal in civil cases was retained by statute in 18761907: Creation of Court of Criminal Appeal – which became Court of Appeal (Criminal Division) in 1966. Further appeal to House of Lords1971: Establishment of Crown Court to hear criminal cases

Other courts

Crown courtMagistrates courtsCounty courts

Case Law

Compare the importance of case law as a source of law in the English, French, and U.S. systemsWhich is the better approach? Why?

Some Pros(?)

CertaintyDetailed application of law to factual circumstancesFree market in legal ideasFlexible

Some Cons(?)

ComplexRigidIllogical distinctions/inconsistencyUnpredictabilityUnsystematicDevelopment depends on chanceLack of reliance on social or economic research

Judicial Precedent

What is stare decisis?In the English system, do judges make law or are they simply declaring what the law is as a neutral decision-maker?

Source of Law: Statutes

Statutes are made by Parliament:House of Lords – reforms: in 1999 hereditary peers reduced from 750 to 92; second stage reform to come: appointed? Elected? Hybrid?House of CommonsWhat is parliamentary sovereignty?See Ruth Rendell, The Blood Doctor, at: http://search.barnesandnoble.com/booksearch/isbninquiry.asp?pwb=1&ean=9781400045044