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THE COMMON LAW of ENGLAND

• Arose in England

• Later forced on Wales

• Forms the basis of American law (with the partial exception of Louisiana)

• Is also the legal system of many former English colonies in Asia, Africa, the Caribbean, and North America

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Celtic Law in England

• We know little about it (they did not have a writing system at the time)

• They may have had poets who functioned as judges

• The Britons (Celts in England) were conquered by the Romans around 50 BC

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Roman rule

• Extended from around 50 BC to about 400 BC• Roman law applied only to Roman citizens and

had little lasting influence in Britain• After the Roman legions left, the Celtic Britons

were subject to attack• They invited Germanic tribes (Angles, Saxons,

Jutes, Frisians) to help defend them• Big mistake!

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Anglo-Saxon (Old English) law

• They had customary (unwritten) law

• Laws and legal transactions used a lot of alliteration, some still evident today:– To have and to hold– Rest, residue, and remainder

• They made laws and judged cases in assemblies called “moots”

• They tried cases using the oath and ordeal

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Written Law

• The Anglo-Saxons were illiterate

• Christian missionaries arrived at Kent around 600 AD

• The priests and monks could write—soon written codes of law began to appear, starting with the laws of King Æthelberht of Kent (see next slide)

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Some laws of King Æthelberht, c. 600AD

17. If any one be the first to make an inroad into a man's tun, let him make bot with six shillings; let him who follows, with three shillings; after, each, a shilling.

18. If a man furnish weapons to another where there is strife, though no evil be done, let him make bot with six shillings.

19. If wegreaf be done, let him make bot with six shillings.

31. If a freeman lie with a freeman's wife, let him pay for it with his wergeld, and provide another wife with his own money, and bring her to the other.

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The Norman Rule

• Normans conquered England in 1066

• They spoke a type of French and used Latin as written legal language

• William claimed all English land and established a feudal system

• The Normans did little lawmaking

• Most disputes were resolved in local courts

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Magna Carta

• Disputes between the king and the barons led to revolt in 1215

• King John was forced to limit some of his powers in a document now known as Magna Carta

• Because it limited royal power, it is seen as the beginning of the English constitution

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Royal Courts

• A centralized system of royal courts was established in the late 13th century

• Advocates were originally clergy, but before long were replaced by legal professionals

• These lawyers were trained at the inns of court, not at universities– They resisted civil law taught at universities– They used French, not Latin, as professional

language (see next slide)

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Some French legal vocabulary

judge, judgment, jury, court, demurrer, estoppel, profit a prendre, voire dire, parol evidence, justice, money, marriage, property, tort, complaint, plaintiff, defendant, appeal, attorney, assault, arrest, counsel, process, suit

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Royal Courts, part 2

• They developed their own law, ultimately known as the “common law”

• Cases could only be commenced by getting a “writ” from chancery

• Writs were in Latin, and consisted of commands or orders by the king to a sheriff or other official– “The King, to Henry Sheriff of Nottingham, greeting.

We command you to summon David Smith and have him brought before our justices in Westminster to answer the complaint of ….”

• Writs in use today: Mandamus, Prohibition, Certiorari, Habeas Corpus

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The decline of French and the “Brickbat” case

In 1688--a prisoner was sentenced who "...ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit indictment drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court."

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Legal Structure: Parliament

Parliament originally merely advised the king• House of Lords

– Comprised of peers, bishops, law lords– Currently being “modernized”– Can only delay/influence legislation

• House of Commons– Majority party selects prime minister– Enacts all major legislation

• The Crown (king or queen)– Must give royal assent to all legislation

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Modern Courts: Inferior

• Inferior courts:– County courts

• Like US small claims courts• Have a professional judge

– Magistrate’s courts• Judges are 3 lay persons without legal training• They are assisted by a legally-trained clerk• Handle most minor criminal matters and some civil

matters

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Modern Courts, Superior

• The High Court– Hears more serious civil matters– Based in London (the Strand)

• The Crown court– Hears serious criminal matters– Has divisions throughout the country– Includes the “Old Bailey” in London

• The Court of Appeals– Divided into a criminal and civil division

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The House of Lords

• The Judicial Committee of the House of Lords – England’s highest court of appeal– Today, only “law lords” with legal training hear

cases– Was replaced by a new supreme court

independent of Parliament in 2009

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Other Courts

• Privy Council• European Court of Justice (Luxemburg)

– UK became subject to it when joining EC– Judgments are hard to enforce

• European Court of Human Rights (Strasbourg)– Enforces European Convention on HR (which

is now part of UK law)– Individuals can sue

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English Legal Profession

• Barristers– Traditionally educated in the Inns of Court– Today, receive university training (undergrad) and

later specialized training (1 year) and 1 year pupilage– Appear in court and wear wigs– Traditionally, no client contact (must go thru solicitor)– Top barristers become QC (“take silk”)

• Solicitors– Advise clients; prepare legal documents– Assist barristers with litigation– Traditionally they have “rights of audience” only in

lower courts (changed in 1999)

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English Judges

• Lord Chancellor traditionally selected them from among barristers (usually QC)

• Currently there is a Judicial Appointments Committee (but no direct elections or confirmation required)

• Judiciary is highly regarded (but not very diverse)

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Trials

• Similar to U.S. trial procedure, but:– The loser pays the prevailing party’s fees– No contingent fees– Juries are less common in civil cases– Individuals can prosecute criminal cases– In jury trials

• There is no voir dire of jurors• Judges summarize the evidence in a “summation”

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Precedent: development

• Precedent (case law): – Is the most distinctive feature of the common

law– Began with students making reports of cases– They simply recorded what happened, as a

way to learn to become lawyers– They therefore focused on what the lawyers

said (see next slide)

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One Richard brought a writ of debt against an abbot and a monk of his house, and he said that the monk while yet secular had borrowed from him ten pounds, to be paid back on a certain day, and on that day the monk did not pay; and of this he tendered suit without showing specialty.

Miggele: He demands this debt by reason of a loan made to the monk while he was yet secular. Now that man is dead as regards the law of the land, inasmuch as he has professed religious vows, so we ask judgement whether you should be received to make such a demonstrance.

Scrope: When the abbot receives a monk he must consider whether he is not charged with debt, for he must receive him with his charge just as a husband shall his wife.

Herle: That is a different matter, for the monk is dead at law and the wife is not.

BEREFORD, C.J. Since you only tender suit which can involve no wager of law, [since] the abbot cannot wage law upon the act of one of his monks, the court awards that you take nothing by your writ.

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Precedent: development, pt. 2

• Lawyers began to pay more attention to what the judges said

• The idea arose that if a case was decided in a certain way, later courts should decide similarly– It saves time and effort– It promotes consistency across cases

• With printing, more accurate reports became widely available

• By late 1800s, HL considered all precedents binding, even on itself!

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Finding the ratio decidendi

• Cross and Harris: “The ratio decidendi of a case is any rule of law explicitly or implicitly treated by the judge as a necessary step in reaching his conclusion…” (=its precedential value)

In England, finding the ratio (holding) of a case is often difficult:– Judges deliver judgments orally (the reports are made

barristers)– There may be multiple reports, not always consistent– There are often multiple (seriatim) judgments

• Thus, the ratio is flexible and may change over time

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Example: In re Estate of Smith

House of Lords

Facts: Jane Smith’s will stated:“I give, devise, and bequeath the rest, residue and remainder of my estate to Felix Smith”

Felix is Jane Smith’s cat.Jane’s relatives ask the court to invalidate the gift.The lower court awarded the estate to Felix.The relatives appeal.

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H.L. Judgments

Lord Kyle of Lockworth: My lords, it seems to me that cats do not understand what money is.

I would allow the appeal

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Lord Horatio of Higgenbottom:

My lords, in my opinion cats are not as intelligent as human beings.

I would allow the appeal.

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Lady Mary of Maplethorp:

My lords, I am shocked by the blatant anti-feline sentiments expressed by my noble and learned friends Lords Kyle and Horatio. My cat is more intelligent than most people I know.

I would dismiss the appeal.

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Lord Chevy of Cheltenham:

I believe the testator should be permitted to do whatever she wishes with her estate.

I would dismiss the appeal.

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Lord Finley of Fishingham:

I own that I am deeply conflicted by this case. I was scarcely able to sleep last night. Yet while eating breakfast this morning and observing my own dear cat, it occurred to me that cats are incapable of operating ATM machines.

I would allow the appeal.

Appeal allowed.

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What’s the ratio???

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American Innovations

• Opinions delivered in writing

• The appointment of official reporters

• The elimination of seriatim opinions

• Hierarchical Organization of Courts

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Supreme Court of the United States

KYLE, J., delivered the opinion of the court, in which HORATIO and FINLEY joined.

[recites facts]

We will conclude, for three reasons, that the lower court’s opinion should be reversed.

First, cats do not understand what money is. In addition, cats are not as intelligent as humans. Finally, cats cannot operate ATM machines.

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Last paragraph of opinion

For the foregoing reasons, we hold that cats cannot inherit under a will.

Reversed.or:For the foregoing reasons, we hold that animals

cannot inherit under a will.Reversed.or:For the foregoing reasons, we hold that animals

cannot legally own property.Reversed.

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Dissent

JUSTICE MARY, with whom JUSTICE CHEVY joins, dissenting.

This is a blatant case of anti-feline discrimination. In addition, it seems to us that people should be able to do whatever they want with their money.

We dissent.

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Precedent: UK vs US

• English conception of precedent is– Generally more binding– Also more oral– And more flexible (subject to reinterpretation)

• American precedent is– More written (publication requirement)– More textual

• “we hold that ….”

– Lawyers engage in less legal reasoning, more close reading

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Statutory Interpretation

• The “literal rule”– Do not deviate from the plain meaning

• The “golden rule”– You do not apply the statute literally if it would lead to

an absurdity• The “mischief rule”

– If a literal interpretation would lead to an absurdity, you can consider a statute’s goal or purpose

• Extrinsic evidence– Traditionally judges could not consider it– Currently judges can sometimes refer to

parliamentary materials to determine a statute’s goal

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The Constitution

• No formal process for enacting/amending• Not contained in a single text (“unwritten”)

– Based partly on important historical documents• Magna Carta (1215)• Bill of Rights (1689)• Certain modern treaties (e.g. the EC Act)

– Also based on custom and convention• Structure of the government and role of prime minister• Supremacy of Parliament (courts cannot declare statutes

unconstitutional)

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Which is best???