SOURCES AND VARIETIES OF ENGLISH LAW

SOURCES AND SOURCES AND VARIETIES OF ENGLISH VARIETIES OF ENGLISH

LAWLAW

Unit 2Unit 2

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1. Source of law1. Source of law 2. English law2. English law 3. Common law: history3. Common law: history 4. Common law vs. Staute law4. Common law vs. Staute law 4. Equity: history4. Equity: history 5. Statute law: history5. Statute law: history 6. EU law: sources6. EU law: sources 7. Legal terms7. Legal terms 8. Exercises8. Exercises

Source of lawSource of law(fons iuris)(fons iuris)

Something (such as a constitution, Something (such as a constitution, treaty, statute, or custom) that treaty, statute, or custom) that provides authority for legislation and provides authority for legislation and for judicial decisionsfor judicial decisions

A point of origin for law or legal A point of origin for law or legal analysisanalysis

Great BritainGreat Britain

England, Scotland and WalesEngland, Scotland and Wales 1536 Wales united with England 1536 Wales united with England 1707 Scotland united with the Treaty 1707 Scotland united with the Treaty

of Unionof Union

The United KingdomThe United Kingdom

1800 Act of Union uniting politically 1800 Act of Union uniting politically Great Britain and Ireland: United Great Britain and Ireland: United Kingdom of Great Britain and IrelandKingdom of Great Britain and Ireland

1922 Irish Free State1922 Irish Free State 1927 the name United Kingdom of 1927 the name United Kingdom of

Great Britain and Northern Ireland Great Britain and Northern Ireland adopted by act of Parliament (UK)adopted by act of Parliament (UK)

English lawEnglish law

The law of England, Wales and The law of England, Wales and Northern Ireland – very similar; the Northern Ireland – very similar; the Scots law – quite differentScots law – quite different

The separate evolution of the two The separate evolution of the two legal systems, both before and after legal systems, both before and after the Union, has resulted in different the Union, has resulted in different principles, institutions and traditionsprinciples, institutions and traditions

Scots law – based on Roman lawScots law – based on Roman law

Sources of English lawSources of English law

Common lawCommon law (Equity)(Equity) Statute lawStatute law EU lawEU law

History of English law:History of English law: The pre-Norman period (before 1066) The pre-Norman period (before 1066)

Based on ancient customs and Based on ancient customs and traditionstraditions

Medieval states and their legal Medieval states and their legal systems – fragmentedsystems – fragmented

Local customs varied from Local customs varied from community to community and were community to community and were enforced in an arbitrary fashionenforced in an arbitrary fashion

The pre-Norman period (before The pre-Norman period (before 1066)1066)

Courts – informal public assemblies Courts – informal public assemblies that considered conflicting claims in that considered conflicting claims in a case; trial by ordeal (e.g. snatching a case; trial by ordeal (e.g. snatching a stone from a boiling water or a stone from a boiling water or carrying a red-hot iron); trial by carrying a red-hot iron); trial by battle (introduced by Normans and battle (introduced by Normans and legal until 1819)legal until 1819)

William the Conqueror (1027?-87)William the Conqueror (1027?-87)

1066 Battle of Hastings1066 Battle of Hastings Established Curia Regis (King’s Established Curia Regis (King’s

Court) – an instrument to govern the Court) – an instrument to govern the country and a court for deciding country and a court for deciding disputesdisputes

Legislative, judicial and executive Legislative, judicial and executive capacitiescapacities

The Reign of Henry II The Reign of Henry II (1154-89)(1154-89)

1154 Henry II became the first 1154 Henry II became the first Plantagenet kingPlantagenet king

First ruler powerful enough to First ruler powerful enough to centralize the country and its laws centralize the country and its laws against the opposition of local baronsagainst the opposition of local barons

Henry IIHenry II

By the Grace of God, King of the By the Grace of God, King of the EnglishEnglishand Duke of the Normans and and Duke of the Normans and AquitaniansAquitaniansand Count of the Angevinsand Count of the Angevins

The Reign of Henry II The Reign of Henry II (1154-89)(1154-89)

King of England, Duke of Normandy, King of England, Duke of Normandy, the ruler of all western Francethe ruler of all western France

Medieval England: a polyglot Medieval England: a polyglot community (English, French, Latin, community (English, French, Latin, Gaelic)Gaelic)

Henry II and the English Legal Henry II and the English Legal RenaissanceRenaissance

Institutionalized common law by Institutionalized common law by creating a unified system of law creating a unified system of law common to the countrycommon to the country

The central royal court whose The central royal court whose decisions provided precedents to be decisions provided precedents to be followed in the futurefollowed in the future

Henry II and the English Legal Henry II and the English Legal RenaissanceRenaissance

Judicial functions = legislative Judicial functions = legislative functionsfunctions

Established Royal Magistrate Established Royal Magistrate courts to adjudicate in local courts to adjudicate in local disputesdisputes

Introduced a jury system Introduced a jury system (witnesses of an event); trial by (witnesses of an event); trial by juryjury

The juryThe jury

Under oath they were to giva a true Under oath they were to giva a true statement which was referred to as a statement which was referred to as a “verdict” (veredictum) “verdict” (veredictum)

They swore to tell the turth: jurors They swore to tell the turth: jurors ((juratores)juratores), meaning a person who , meaning a person who has been swornhas been sworn

The juryThe jury

Vox populi Vox populi took place of the took place of the vox dei vox dei that was used in ordealsthat was used in ordeals

14c. jurors began to take on the role 14c. jurors began to take on the role they have today of trying evidencethey have today of trying evidence

The trial of the fact: separated from The trial of the fact: separated from the application of the lawthe application of the law

Henry IIHenry II

18 judges: 5 remained in London and 18 judges: 5 remained in London and took over the King’s task of deciding took over the King’s task of deciding cases (Westminster)cases (Westminster)

remaining judges – sent out on remaining judges – sent out on circuits to travel the country – had to circuits to travel the country – had to apply the laws that had been made apply the laws that had been made by the judges at Westminster: local by the judges at Westminster: local laws replaced by national laws that laws replaced by national laws that would apply to all: common lawwould apply to all: common law

The Royal Courts (Westminster)The Royal Courts (Westminster)

The Court of Exchequer (taxes)The Court of Exchequer (taxes) The Bench of Common Pleas The Bench of Common Pleas

(litigation between private (litigation between private individuals)individuals)

The King’s Bench (pleas to the Crown The King’s Bench (pleas to the Crown as opposed to common pleas: King’s as opposed to common pleas: King’s duty to protect the peace)duty to protect the peace)

Royal judgesRoyal judges

Judging cases in the same manner Judging cases in the same manner using the same law – important for using the same law – important for the development of common lawthe development of common law

13th c. royal judges became 13th c. royal judges became professional judges professional judges

The Writ SystemThe Writ System

Beginning a procedure before a local Beginning a procedure before a local court .- an oral complaint by the court .- an oral complaint by the plaintiffplaintiff

Access to royal courts was not seen Access to royal courts was not seen at first as a right but as a privilegeat first as a right but as a privilege

Permission to petition these courts Permission to petition these courts was necessarywas necessary


In the preliminary procedure, an In the preliminary procedure, an individual had to obtrain a writindividual had to obtrain a writ

Writs - instructions from the Crown to Writs - instructions from the Crown to a royal officer, judge or magistrate, a royal officer, judge or magistrate, authorizing him to summon the authorizing him to summon the person to court and to resolve the person to court and to resolve the conflict in the presence of the partiesconflict in the presence of the parties

The writ contained a brief summary The writ contained a brief summary of the affairof the affair


Writs were issued by the Chancellor Writs were issued by the Chancellor in the name of the King for a fee paid in the name of the King for a fee paid by the plaintiffby the plaintiff

They corresponded to different types They corresponded to different types of actions and procedure (e.g. writ of of actions and procedure (e.g. writ of debt, writ of trespass)debt, writ of trespass)

New writs could be added, so the New writs could be added, so the number of writs increasednumber of writs increased

The writ systemThe writ system

Dominated by formalism: rights and Dominated by formalism: rights and remedies were available only if the remedies were available only if the proper writ could be foundproper writ could be found

Formalism – of great importance; Formalism – of great importance; little importance placed on abstact little importance placed on abstact legal ruleslegal rules

It was more important to have a rule It was more important to have a rule which is constant than that which is which is constant than that which is fairfair


It was essential that all could know It was essential that all could know and feel confident in the decision the and feel confident in the decision the court would make since it would be court would make since it would be the same decision that was made the same decision that was made before in previous, similar casesbefore in previous, similar cases

Disrupting this continuity would have Disrupting this continuity would have graver consequences than an graver consequences than an occasional unfair application of this occasional unfair application of this lawlaw

Judicature Act 1873Judicature Act 1873

The three courts were abolished and The three courts were abolished and their jurisdiction was transfered to a their jurisdiction was transfered to a single High Court, with separate single High Court, with separate functional divisionsfunctional divisions

““From time immemorial”From time immemorial”

In reign of Edward I (1272-1307) In reign of Edward I (1272-1307) Parliament decided that ‘legal Parliament decided that ‘legal memory’ should run from the date of memory’ should run from the date of Henry’s death (1189)Henry’s death (1189)

Courts would take no account of any Courts would take no account of any legal transactions which had taken legal transactions which had taken place before itplace before it

Assize systemAssize system

Survived for 800 years (until 1971)Survived for 800 years (until 1971) Judges applied national laws, but Judges applied national laws, but

would not ignore customs of the would not ignore customs of the regionregion

If they approved they would accept If they approved they would accept them as law and carried them to them as law and carried them to other parts of the countryother parts of the country

Common Law: DefinitionCommon Law: Definition

The body of law derived from The body of law derived from judicial decisions, rather than judicial decisions, rather than from statutes or constitutions; a from statutes or constitutions; a native product of Britain (‘judge-native product of Britain (‘judge-made law’)made law’)

Common LawCommon Law

The legal system of Australia, The legal system of Australia, Canada (except Quebec), England Canada (except Quebec), England and Wales, Ghana, Hong Kong, India, and Wales, Ghana, Hong Kong, India, Jamaica, Malaysia, New Zealand, Jamaica, Malaysia, New Zealand, Pakistan, the Republic of Ireland, Pakistan, the Republic of Ireland, Singapore, Sri Lanka, Tanzania, the Singapore, Sri Lanka, Tanzania, the USA (except Louisiana), the USA (except Louisiana), the Bahamas, ZambiaBahamas, Zambia

Civil Law: DefinitionCivil Law: Definition(ius civile = law of the state)(ius civile = law of the state)

One of the two prominent legal One of the two prominent legal systems in the Western World, systems in the Western World, originally adminstered in the Roman originally adminstered in the Roman Empire and still influential in Empire and still influential in continental Europe, Latin America, continental Europe, Latin America, Scotland, and LouisianaScotland, and Louisiana

The most influential modern civil The most influential modern civil code – Napoleonic Code (egalitarian code – Napoleonic Code (egalitarian ideals of the French Revolution; the ideals of the French Revolution; the law should be accessible to all)law should be accessible to all)

The Common Law vs Statute lawThe Common Law vs Statute law

Common law: unwritten = unenacted Common law: unwritten = unenacted (=not passed by the Parliament, but (=not passed by the Parliament, but created by courts); inductive created by courts); inductive principleprinciple

Statute law: written = enacted (= Statute law: written = enacted (= passed by the Parliament); deductive passed by the Parliament); deductive principleprinciple

Common Law = Judge-Made LawCommon Law = Judge-Made Law

““There was a time when it was There was a time when it was thought almost indecent to suggest thought almost indecent to suggest that judges make law . They only that judges make law . They only declare it. Those with a taste for fairy declare it. Those with a taste for fairy tales seem to have thought that in tales seem to have thought that in some Aladdin’s cave there is hidden some Aladdin’s cave there is hidden the Common Law in all its splendour the Common Law in all its splendour and that on a judge’s appointment and that on a judge’s appointment there descends on him knowledge of there descends on him knowledge of the magic words Open Sesame. ..the magic words Open Sesame. ..

Common law- judge-made lawCommon law- judge-made law

Bad decisions are given when the Bad decisions are given when the judge has muddled the password and judge has muddled the password and the wrong door opens. But we do not the wrong door opens. But we do not believe in fairy tales any more. So we believe in fairy tales any more. So we must accept the fact that for better must accept the fact that for better or worse judges do make law, and or worse judges do make law, and tackle the question how do they tackle the question how do they approach their task and how should approach their task and how should they approach it” (B. Cardozo, 1972)they approach it” (B. Cardozo, 1972)

Equity: DefinitionEquity: Definition

1. fairness, impartiality1. fairness, impartiality 2. the body of principles constituting 2. the body of principles constituting

what is fair and right; natural lawwhat is fair and right; natural law

EquityEquity

3. the recourse to principles of 3. the recourse to principles of justice to correct or supplement the justice to correct or supplement the law as applied to particular law as applied to particular circumstancescircumstances

4. The system of law or body of 4. The system of law or body of principles originating in the English principles originating in the English Court of Chancery Court of Chancery

Equity: HistoryEquity: History

No hierarchy of courtsNo hierarchy of courts Dissatisfied litigants could only Dissatisfied litigants could only

petition the King in person (judicial petition the King in person (judicial function)function)

Judicial functions – delegated to Lord Judicial functions – delegated to Lord Chancellor, originally the King’s Chancellor, originally the King’s confessor and thus “a keeper of the confessor and thus “a keeper of the King’s conscience”King’s conscience”

Equity: HistoryEquity: History

The function of the Lord The function of the Lord Chancellor evolved into that of Chancellor evolved into that of the highest judge; dealt only with the highest judge; dealt only with civil disputes (property, civil disputes (property, contracts) contracts)

Thomas More (1478-1535) - the Thomas More (1478-1535) - the first lawyer by profession to hold first lawyer by profession to hold that functionthat function

Lord Chancellor and Chancery Lord Chancellor and Chancery CourtsCourts

The function of the Lord Chancellor: The function of the Lord Chancellor: to ensure fairness and justice if it to ensure fairness and justice if it was not provided by a common law was not provided by a common law courtcourt

A system of chancery courts A system of chancery courts developed that administered equitydeveloped that administered equity

Courts of common law – often in Courts of common law – often in conflict with chancery courtsconflict with chancery courts

Court of ChanceryCourt of Chancery

Conditions a person seeking justice had Conditions a person seeking justice had to meet:to meet:

1) he had to show that he could not 1) he had to show that he could not receive justice in the common law courtsreceive justice in the common law courts

2) had to show that he was without 2) had to show that he was without blame (‘coming to court with clean blame (‘coming to court with clean hands’)hands’)

3) had to show he had not delayed in 3) had to show he had not delayed in bringing the case before the courtbringing the case before the court

Equity and Common LawEquity and Common Law

At first – no rules of equity; entirely At first – no rules of equity; entirely based on Lord Chancellor’s based on Lord Chancellor’s conscienceconscience

Gradually equity evolved rules of its Gradually equity evolved rules of its own, became closer to common lawown, became closer to common law

1873 The Judicature Act ‘merged’ 1873 The Judicature Act ‘merged’ common law and equity common law and equity

Statute LawStatute Law

Originally created by the monarchOriginally created by the monarch By 13th c. gradually made through By 13th c. gradually made through

royal orders in response to petitions royal orders in response to petitions from the Parliamentfrom the Parliament

Parliament became the legislating Parliament became the legislating authority because of its growing authority because of its growing power against the monarchpower against the monarch

Modern StatutesModern Statutes

Modern statutes – 19th and 20th c. Modern statutes – 19th and 20th c. developmentdevelopment

Statutes – Acts of Parliament, Statutes – Acts of Parliament, created after a bill has been created after a bill has been accepted by both Houses of the accepted by both Houses of the Parliament and signed by the Parliament and signed by the monarchmonarch

Supreme over all other forms of Supreme over all other forms of domestic lawdomestic law

Statute law vs. Common lawStatute law vs. Common law

Judges interpret statutes and thus Judges interpret statutes and thus create new precedentscreate new precedents

Interpretation: literal meaning or Interpretation: literal meaning or purpose?purpose?

McBoyle vs. US (1930)McBoyle vs. US (1930)

The petitioner – convicted of transporting The petitioner – convicted of transporting a stolen vehicle across state lines in a stolen vehicle across state lines in contravention of the National Motor contravention of the National Motor Vehicle Theft Act (1919)Vehicle Theft Act (1919)

Section 2. of the Act defined a motor Section 2. of the Act defined a motor vehicle as including “an automobile, vehicle as including “an automobile, automobile truck, automobile wagon, automobile truck, automobile wagon, motorcycle, or any other self-propelled motorcycle, or any other self-propelled vehicle not designed for running on vehicle not designed for running on rails...”rails...”

McBoyle vs. US (1930)McBoyle vs. US (1930)

The short point was whether an aircraft fell The short point was whether an aircraft fell within the statutory definition of a vehiclewithin the statutory definition of a vehicle

On its natural reading, the definition On its natural reading, the definition seemed to contemplate that a vehicle ran seemed to contemplate that a vehicle ran on the land and, whilst the phrase “any on the land and, whilst the phrase “any other self-propelled vehicle” might have other self-propelled vehicle” might have been seized upon to widen the definition, been seized upon to widen the definition, the court declined to take this opening. the court declined to take this opening. The offence, therefore, had not been The offence, therefore, had not been committedcommitted

Sources of EU LawSources of EU Law

PrimaryPrimary: the Treaties : the Treaties SecondarySecondary: : 1. Regulations – binding in their entirety 1. Regulations – binding in their entirety

and directly applicable in all the Member and directly applicable in all the Member StatesStates

2. Decisions: binding on those to whom 2. Decisions: binding on those to whom they are addressedthey are addressed

3. Directives: binding upon each Member 3. Directives: binding upon each Member State to which they are addressed; State to which they are addressed; methods left to the Member Statesmethods left to the Member States

Legal termsLegal terms

ZakonZakon LawLaw statutestatute Act of Parliament (bill=prijedlog Act of Parliament (bill=prijedlog

zakona)zakona) Legislation (= zakonodavstvo; Legislation (= zakonodavstvo;

zakoni)zakoni)


Equity= pravičnost; pravosudni Equity= pravičnost; pravosudni sustav koji stvaraju suci (različit od sustav koji stvaraju suci (različit od common law), a zasniva se na načelu common law), a zasniva se na načelu pravičnostipravičnosti

Legal remedyLegal remedy Pravni lijekPravni lijek


Common lawCommon law A general system of law deriving A general system of law deriving

exclusively from court decisionsexclusively from court decisions Englesko opće pravo (ne postoje Englesko opće pravo (ne postoje

propisani izvori prava), pravo koje ne propisani izvori prava), pravo koje ne potječe od zakonodavnih tijela već potječe od zakonodavnih tijela već sudsko pravo, precedentno pravo; sudsko pravo, precedentno pravo; pravo čiji je primarni izvor u sudskim pravo čiji je primarni izvor u sudskim presudamapresudama


PrecedentPrecedent A judgement or decision of a court, A judgement or decision of a court,

normally recorded in a law report, normally recorded in a law report, used as an authority for reaching the used as an authority for reaching the same decision in subsequent casessame decision in subsequent cases


Public lawPublic law The part of law that deals with the The part of law that deals with the

constitution and functions of the constitution and functions of the organs of central and local organs of central and local government, the realtionship government, the realtionship between individuals and the state, between individuals and the state, and relationships between and relationships between individuals that are of direct concern individuals that are of direct concern to the stateto the state

Legal terms: Public lawLegal terms: Public law

Constitutional lawConstitutional law Administrative lawAdministrative law Tax lawTax law Criminal lawCriminal law

Legal terms: public civil lawLegal terms: public civil law= javno građansko pravo= javno građansko pravo

Constitutional lawConstitutional law

= ustavno pravo= ustavno pravo

Administrative lawAdministrative law

= upravno pravo= upravno pravo

Revenue lawRevenue law

= financijsko pravo= financijsko pravo

Private civil lawPrivate civil law= privatno građansko pravo= privatno građansko pravo

Law of contractLaw of contract = ugovorno pravo, obvezno pravo= ugovorno pravo, obvezno pravo Law of tortLaw of tort = odštetno pravo= odštetno pravo Family lawFamily law = obiteljsko pravo= obiteljsko pravo


ContractContract = ugovor= ugovor TreatyTreaty = međunarodni ugovor= međunarodni ugovor


Substantive lawSubstantive law = materijalno pravo, pozitivno pravo= materijalno pravo, pozitivno pravo Procedural lawProcedural law = procesno pravo, postupovno pravo= procesno pravo, postupovno pravo

The sources of lawThe sources of lawExerciseExercise

Match these sources of law with the Match these sources of law with the descriptions below:descriptions below:

Common lawCommon law Napoleonic CodeNapoleonic Code Roman lawRoman law The Ten CommandmentsThe Ten Commandments

Exercise (cont.)Exercise (cont.)

_____, which evolved in the 8th century BC, _____, which evolved in the 8th century BC, was still largely a blend of custom and was still largely a blend of custom and interpretation by magistrates of the will of interpretation by magistrates of the will of the gods.the gods.

_____formed the basis of all Israelite _____formed the basis of all Israelite legislation. They can also be found in the legislation. They can also be found in the laws of other ancient peoples.laws of other ancient peoples.

_____refers to the entire body of French _____refers to the entire body of French law, contained in five codes dealing with law, contained in five codes dealing with civil, commercial, and criminal law.civil, commercial, and criminal law.

Exercise (cont.)Exercise (cont.)

______evolved from the tribal and local ______evolved from the tribal and local laws in England. It began with common laws in England. It began with common customs, but over time it involved the customs, but over time it involved the courts in law-making that was courts in law-making that was responsive to changes in society. In this responsive to changes in society. In this way the Anglo-Norman rulers created a way the Anglo-Norman rulers created a system of centralized courts that system of centralized courts that operated under a single set of laws that operated under a single set of laws that replaced the rules laid down by earlier replaced the rules laid down by earlier societies.societies.

EXERCISE 2EXERCISE 2

Are the following sentences about Are the following sentences about the sources of law true or false?the sources of law true or false?

1. The Ten Commandments are 1. The Ten Commandments are based on moral standards of based on moral standards of behaviour.behaviour.

True or false?True or false?

2. In common law, judges resolve 2. In common law, judges resolve disputes by referring to statutory disputes by referring to statutory principles arrived at in advance.principles arrived at in advance.

3. Roman law is based on the 3. Roman law is based on the principle of deciding cases by principle of deciding cases by reference to previous judicial reference to previous judicial decisions, rather than to written decisions, rather than to written statutes draftred by legislative statutes draftred by legislative bodies.bodies.

True or false?True or false?

The Napoleonic Code was introduced The Napoleonic Code was introduced into a number of European countries, into a number of European countries, notably Belgium, where it is still in notably Belgium, where it is still in force. It also became the model for force. It also became the model for the civil codes of Quebec Province in the civil codes of Quebec Province in Canada, the Netherlands, Italy, Canada, the Netherlands, Italy, Spain, some Latin American Spain, some Latin American republics, and the state of Louisianarepublics, and the state of Louisiana

Additional sourcesAdditional sources

UK case reports: UK case reports: www.courtservice.gov.uk www.lawreports.co.uk UK Parliament and legislative process: UK Parliament and legislative process: www.parliament.uk Legislation around the world:Legislation around the world: www.lexadin.nl/wlg/legis/nofr/legis.htmwww.lexadin.nl/wlg/legis/nofr/legis.htm

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SOURCES AND VARIETIES OF ENGLISH LAW