Introduction to English Common Law PDF

Introduction to English commun law : Accès par clé : Communlawletalleur Ouvrages : Manul Brunon Anne et al The English of law : England and Wales Paris Berlin 2006 Civilisation britannique par Sarah Pickard , Pocket dernière édition Modalités de contrôle :QCM en présentiel , 40...

Introduction to English commun law : Accès par clé : Communlawletalleur Ouvrages : Manul Brunon Anne et al The English of law : England and Wales Paris Berlin 2006 Civilisation britannique par Sarah Pickard , Pocket dernière édition Modalités de contrôle :QCM en présentiel , 40 question sur le cours ( de grammaire ou de vocabulaire ) Contenue : droit anglais et anglais juridique [email protected] Bureau F304 lundi Introduction to commun law Law is never made out in a vacuum, we need a context ( political, cultural, social , graphical, ect..) they are an impact, an influence on the law. It’s a reflection of the society of UK , British empire was the key of this commun law Key information : a piece of information or some information Une preuve : evidence , there is evidence/ proof Million without S I. Geography and history : Britain hasn’t always been an island , Britain was cut off , from the European continent around 6 100 B christ, The English Channel ( la manche ) was not easy to invade( last invasion was guillaume le conquérant ) with a specific society who were narrow minded Brexit ( va voir le cours de l’année dernière) influenced national identity or identities and legal system Voir une biographie sur david Cameron , et Boris Johnson Mickel furage was against UE The UK is not just England but 4 other nation , North Ireland et Écosse ( are still in UE), Pays de Gale. The only frontier with the European Union is in the north island,  The British Isles , terme géographique ( great Britain biggest island of the archipelago is not a country) The British islands The united kingdom of great britain and northern ireland terme politique qui regroupe Britain, England , Scotland and Wales, isle of man, isle of wight : an archipelago The channel island are independent but political ways are from Britain ( paradis fiscaux The Uk was born under an union of 4 country England Scotland, Wales and northern ireland North island and island has a frontier Pas d’adjectif en nationalité en français,( la femme britannique , une Britannique ) mais en anglais c’est les adjectifs et les noms de nationalité They are not like la catalogne or le pays Basque , they are in a union wanted and they can quit when they want, when we talk about commun law we talk about the English law and Wales, la commun law on parle pas du system Ecosse et de l’Ireland du nord , ils n’ont pas les meme jurés, in England they have twelve juries and ten of them can vote and choose the final decision Commun law is legal concept sometimes used for laws applying specifically to England and Wales, droit fondé sur la jurisprudence ( d’un point de vue français) c’est un droit non codifié c’est juste les arrêts et les décisions des juges. Scotland : united in 1707 with England and Wales but in 1999 Scotland creat her parlement , "devolution » ( decentralization ), on va deluges les pouvoirs au nations ( régions ) Nicola surgeon a la tête du scotissh indépendance party , premiere ministre en écosse , first minister Mhairi black la plus jeune député Ireland : 1150 English colonization started 1801 Ireland included in the united kingdom President head of the state of ire, d and the supreme commander of the Irish Every things was centralize around England , London was a dominent institutional political, economic, cultural. Centre 1970 devolution with the emergence of the Scottish parlement and the assembly of Wales Commenwealth 54 countries : influenced by commun law , 2 pays ont demander à entrer dedans il y’a le Rwanda et Mozambique, association qui vise à promouvoir la culture, l’éducation et le développement durable (éducation, cultural, sustainbelity ) Scotland uses Scots law and northern Ireland uses northers Irish law Procedures are different Important text : habeas corpus act 1679 For the serious criminal( droit penal) cases are tried( jugé) by jury in both system 1066 William the conqueror ( William of normandy ) 1215 Magna Carta ( l’état de droit ) 1337 1453 Hundred years war jean of arc 1509 1547 HENRI VIII 1558 1603 ELISABETH I 1625 1649 charles I 1642 1648 civil war 1649 59 the commonwealth ( republique )d’Olivier Cromwell. 1660 1714 restoration of the monarchy Demographics : 68 MILLION PEOPLE now The anglo saxons ( deux tribus : qui remonte au 7eme siècle, les angles et les saxons ) who created their own Kingdom, Wessex Essex = ancien royaume saxon Battle of Hastings , William duke of normandy takes power over England in 1066 = la tapisserie de Bayeux Political regime : nature of the regime is that it is parliamentary monarchy ( democracy parlementaire), it’s means that the head of state the monarch , people choose member of parlement and who will represent them , representatives must do what people ask them to do and voted them for, democratic capitaliste ,la loi du marché est une force dominante What does law mean ? Law = justice et droit , the system of rules with a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties A law The law An acte ( of Parliament) a statue = une loi votée par le parlement To break the law : transgresser la loi Commun law : exception culturelle, géographique et historique The purposes and functions of law, legal categories : Droit spécialement sur les îles britanniques, grande Bretagne l’ile la plus importante > ile d’Irlande mais aussi des pays influencé ou ancien colonisé comme l’Inde qui en plus de la commun law ont un code ( Navtej singh Johar/ Union of India ) Law order : public order law is ment to help order according social and public subject ethics also are mainly accord of how you behave, political order ( constitution) qui va dire comment les pouvoirs interagissent et quel est le lien Entre les individu et le pouvoir, the constitution function of law, social order concept de violation de propriété privé ( trust pass) in their traduction différence entry else individu c’est une inégalité, il fallait un équilibre pour que les gens puisse tolérer en fonction des inégalités sinon possibilité de révolution -> le droit est rétrograde et conservateur et va privilégie le pouvoir en place Economical order-> right to private propriety dans les démocraties capitalistes, the right to regulate a market financial market regulation( réglementation du marché financier ) Order international-> Vocabulaire : asylum seekers, wartime prisoners, protection of civilians in war zone, the sick and the wounded The Hague convention 1899 ( protection des réfugiés de guerres, prisonniers, et apporter de l’aide au malades et au blessés) Banning the use of chemical weapons etc Human right act : art 8 right to respect for private and family life Everyone has the respect for his private and family life, his home and his correspondence Legal categories : Roman law/civil law vs Commun law Statue law vs commun law Commun law is made by the judiciary law Statue law by the legislative power Equity/ commun law : quand le juge rend sa décision : sois il va décider la partie plaignante obtient une indemnisation, soi que la personne arrête The dualistic approach to the applicability dualisme : faut que le texte soit redirigé et voté Moniste : intègre directement le texte dans le droit domestique National adapt international law automatically In England there is no bills of right, c’est le texte européen qui a été adapté dans le droit domestique qui a permis de voir qu’il fallait préserver le droit des hommes, il y’avait de texte qui les rassemblait de façon exhaustive l’etat en Angleterre c’est the crown Public law Private law voir le power point Criminal law ( guilty or not guilty) on vas pas utiliser le meme procédé / civil law ( responsable or not responsable) Beyond reasonable doubt def On the balance of probabilities def Criminal law vs tort (def) Le demandeur poursuit le défendeur, the claiment sues the défendant The sentence , deterrence ( dissuasive) Substantive law vs procedural law Sadiq khan mayor of London, labour The nature of the British political regime Symbolically the queen is at the head of the 3 pouvoirs She has also some real power, elle signe les traité ect ( va voir ), elle proroge le parlement, de conseiller, de guider et avertir le gouvernement To advise guide and warn the government La reine a le droit de rentrer que dans la chambre de lord La chambre des communes est souveraine La massue doit être poser quand on l’enlève le débat peut commencer Les indénombrables : Uncountable Nouns music, art, love, happiness. advice, information, news. furniture, luggage. rice, sugar, butter, water. electricity, gas, power. money, currency. Les grands textes qui ont une valeur universelle c’est des textes écrits qui forme la constitutions The three powers : legislative executive and judiciary Les pillar : the rule of law, la souveraineté parlementaire ( le parlement qui débat et qui décide ) Codified law as opposed to judge-made law (*1804 Napoleonic civil code) - the role of the binding precedent: '"'In simple terms the doctrine of judicial precedent, also known as the doctrine of 'stare decisis' ('let the decisions stand') means that when a judge comes today to try a case he must proceed by analogy and always look back to see how previous judges have dealt with previous cases (known as 'precedents') which have involved similar facts in that branch of the law. The judge has to find these principles known as "authority in point' directly relevant to the case at stake. He will therefore seek to make a decision which is consistent (être cohérent) with the existing principles in that branch of the law, and he may, in his turn develop those principles a stage further." Roman law or Civil law as opposed to Common law * In England, law is essentially based on judicial decisions i.e. jurisprudence in French, case-law in English. There is no Code Civil or Code pénal (criminal code) i.e roughly a book describing all the offences. Attention!lI le mot « jurisprudence » est un faux-ami, en anglais "Jurisprudence" is the theory and philosophy of law. Symbolic powers - _) to declare war, make treaties, take possession of or give up territories, issue orders to armed forces, control and manage the civil service. dissolves parliament, appoints Prime Minister, opens and closes parliamentary sessions, signs laws (royal assent), head of the Anglican Church, appoints archbishops and bishops (on proposition by PM), appoints ambassadors, awards honours and titles (list given by PM), Sources of the British constitution 1 Parliamentary laws with special importance Laws which define the 'powers' or the links between the state and citizens can be considered as 'constitutional', Magna Carta, 1215, Habeas Corpus Acts 1640 & 1679, Bill of Rights 1689, Reform Act 1832, European Communities Act 1972, Human Rights Act 1998, Scotland Act 1999, etc. In theory, a simple vote can abolish them From king's personal power to Parliamentary domination A Before Parliament Witenagemot (6-11'' centuries, until1066): Anglo-Saxon kingdoms = "assembly of wise men". Norman invasion (1066): King's council (= Curia Regis) = king's main advisers (ministers), nobles (landowners, barons), churchmen (bishops). Based in London (Westminster). Functions: daily administration + taxes + advice on laws A Origin of modern Parliament Cabinet (= ministers) Higher courts of law B- The emergence of Parliament Parliament was summoned more regularly. Each assembly also started to discuss separately. 1341: first time the Commons met separately 'Lower Chamber' became known as the House of Commons (lower aristocracy + rich urban people) "Upper Chamber' (nobility and clergy) became known as the House of Lords from 1544 onward collectively known as the Houses of Parliament. - Parliament was summoned irregularly by the king. - But Parliament became more autonomous and started proposing its own "bills" to the A REMINDER - THE BRITISH CONSTITUTION A parliamentary monarchy Head of state: monarch Symbolical power Parliament ) Real power The UK is a hereditary monarchy The Monarch has residual, symbolical powers The constitution; The nature of the British political regime 1 A parliamentary monarchy the head of state is the monarch, 2 A constitutional monarchy 3 A representative / parliamentary democracy 4 A liberal democracy 5 A capitalist democracy Sources of the Constitution 4 essentially: 1) Parliamentary laws: Magna Carta, 1215, Habeas Corpus Acts 1640 & 1679, B 1689, Reform Act 1832, European Communities Act 1972, Human Rights Act 19 The common law. 2) judge made law 3) Conventions. 4) international treaties and laws of the European Union: The three powers * Governing involves three main tasks, called powers: legislative, executive, judiciary 1- the legislative branch/the legislative: the process of making laws. In the UK, Parliament, made of the monarch, the House of Commons and the House of Lords (more next week); - 2-the executive branch: the implementation of the law. All agents of government, especially the Cabinet (20 main ministers around the Prime Minister), local government, civil servants...; 3-the judicial branch/the judiciary: the enforcement of law, i.e, making sure that the law is respected and redresses injustices. Courts and police. D-3 essential principles must be respected in a democratic constitution: 1 « the rule of law » (l'État de droit)/ la "règle du droit"), 2 Parliamentary sovereignty 3 separation of powers. The Queen has a power of consultation and advice for government The Queen represents national unity (geography) and continuity in time (history), a source of stability She meets the Prime Minister every week, (on a weekly basis) for a private audience She always remains absolutely neutral and is not allowed to vote, "How did the Supreme Court rule against the government on suspending Parliament? Eleven of the Supreme Court justices - the largest possible panel - heard legal arguments from court cases in England and Scotland. They had to decide whether judges have the power to intervene in how a prime minister prorogues Parliament. And, if they do, was Edinburgh's court right to conclude Mr Johnson had acted unlawfully in closing it for such a long period? Their decision was unanimous." https://www.bbc.com/news/uk-49663001 Many different elections in Britain: General election (en anglais au singulier; les élections législatives) Local / mayoral Régional European? Referendums; since the 1970s, = an active democracy where citizens are regularly asked to choose their politicians. The general election sends MPs to the House of Commons (law is made in Parliament) A MP: Member of Parliament (un député) = sits in the H. of Commons Iritain; representatlve democracy: citizens choose people to represent them where they discuss and vote the laws of the country. Universal suffrage; the whole adult population must vote. Several parties; competition for power with a real choice for voters Free media to make programmes of all parties public. - An opposition is allowed in Parliament to defend other points of view Separation of powers/ the Mis are accountable to their electors and supposed to act in a way that satisfies them Regular elections: Geographical representation; each MP is elected by peoples living ina given area, a constituency (circonscription) From private interests to public good Most acts of Parliament: local and / or private. Ex: land ownership, building of roads, canals, divorces. Few public Acts: taxation and trade essentially. Private interests > general good. - 1750-19th century: industrial revolution (economic, urban, demographic expansion) with terrible human consequences (poverty e.§.) = public legislation was passed to fight them * Exc Public Health Act 1838 created a Central Board of Health to organise drainage, water supply and street cleaning to fight epidemics (cholera). = slowly Parliament became aware of national problems = it became the responsibility of Parliament passed From private interests to public good 20th century: legislation began to reflect the interest of the majority of people. 2) Expansion of right of vote = universal suffrage: 1918 for all men ≥ 21 + married women 230 1928: all women 221 A Welfare State > 1945 (= l'État providence): massive state intervention in social and economic matters became common, accepted and desired by the people. Legislation became part of the political game. The "general interest" was now essential The conditions of the election Who may and may not vote? British subjects and citizens of the Irish Republic residents in the UK Minimum age 18. Labour will bring it down to 16 if it wins the next election Not allowed to vote: people who lost their civil rights (convicted offenders in prison, people guilty of corrupt or illegal practices,insane people...). Members of the House of Lords Voting is voluntary, not compulsory. Voting day: always on a Thursday Vote by proxy (procuration) and postal votes allowed (postal votes: 20% in 2010) - When do people vote? -Every 5 years. 2011 Fixed-term Parliaments Act: parliament must last 5 years (no early dissolution possible as before unless a 2/3 majority vote in Parliament or a vote of no confidence) When an MP dies or retires: by-election (élection partielle) to replace him or her. By-elections: major tests for the government (voters send a message) The candidates: Who may and may not stand in an Election? British subjects and citizens of the Irish Republic residents in the UK Minimum age 18. Who cannot be a candidate? People with an interest in public affairs supposed to serve everybody equally (no political activity): members of the House of Lords,members of the Armed Forces and of the Police Force,some local government officers and members of public corporations. + people at least 1 year in prison, convicted of illegal or corrupt practices at elections,clergy of the Churches of England, Scotland and Ireland, and of the Catholic church, Candidates chosen by political parties. Signature of 10 electors from his constituency to be candidate.Deposit (une caution): €500. Lost if less than 5% of the vote.'Canvassing (door-to-door contact with voters), publication of propaganda (leaflets, party manifestos), sent free to voters through the mail.Political advertising legal Special election broadcasts on TV and radio.Expenses limited by law, 2010: 650 constituencies = one MP each = geographical representation England Equal size (based on population) but inequalities inevitable Four Boundary Commissions revise their limits between elections. Scotland and Wales are slightly overrepresented. A Scotland has its own elected parliament: number of Scottish seats cut from 72 to 59 in 2005. A Pb for Labour Party: 67 of its 258 seats (26%) in 2010 come from Scotland. A UK Parliament: predominantly English and Conservative. Easy to understand; voting procedure transparent, clear political choice. No bargaining (négociations) between parties before the Election. strong government. Almost always produces a clear majority in the Commons = no need for a coalition, no interference from other parties. Stability of political institutions. Strong links between MPs and constituents (= voters) exist. It works! Since 1884. All other systems have drawbacks (défauts), so why change? 67 other countries use it. Drawbacks Since the 1990s, increasing demands for reform Looks fair, but it is a minority's choice, not a majority's choice. Winning party gets an absolute majority in seats (except in Feb-Oct 1974, in 1977-79 and since 2010) but never an absolute majority in votes (.e. > 50% of votes) since 1935. Country ruled by a party not supported by a majority of people = party with the largest minority wins. 2001 general election: Labour won 62% of the seats in the House of Commons. with 44,4% of voters and only 25% of the total electorate (i.e, registered voters) Works against smaller parties: electors know it is useless to vote for them, because they will never get a majority in Parliament to govern the country. Liberal Democrats hate the system: they often come second (many votes) but don't win. Strongholds (= bastions); a large proportion of the population vote for the same party '"safe seats" because one party sure to win a large majority of the vote. Better to win many constituencies with a small majority than win a few with large majorities. Ex: Labour = working class areas; Conservatives = rural areas A It is possible to win a majority of seats with a minority of votes. Feb 1974 general election: one option is a formal coalition with other parties, in which the coalition partners share ministerial jobs and push through a shared agenda. - a "confidence and supply" agreement: the smaller parties agree to support the main legislation, such as a budget and Queen's speech put forward by the largest party, but do not formally take part in government. Advertisement Although you need 326 MPs to reach a simple majority of the 650-seat House of Commons, In reality the number is actually smaller. The Speaker and his three deputies do not yote and the seven Sinn Féin MPs refuse to take their seats. This means that the working majority needed is actualiy. 11 fewer at 320. - The 318 Conservatives plus the 10 DUP MPs could deliver a working majority of 13." a 328 Vocabulary An Act (of Parliament), a statute: une loi votée au Parlement Parliamentary law = statute law= statutory law An MP (Member of Parliament): un député. House of Commons only Prime Minister (PM) A bill: un projet de loi A department: un ministère The Crown: the State House of Lords = Upper House House of Commons = Lower House House of Commons elected = more legitimate than H. of Lords? Parliamentary session normally in November with the State Opening of Parliament, in which the monarch delivers the Speech from the Throne in the House of Lords, Only occasion when MPs are allowed inside the House of Lords, The Queen doesn't have the right to address the Commons, Parliamentary session resume (after prorogation, 4 weeks max.) with the State Opening of Parliament, in which the monarch delivers the Speech from the Throne in the House of Lords. Only occasion when MPs are allowed inside the House of Lords, The Queen doesn't have the right to address the Commons "A Parliament is the period of parliamentary time between one general election and the next. The Fixed-term Parliaments Act 2011 sets the interval between general elections at five years. Each Parliament is usually divided into five parliamentary years called 'sessions', beginning and ending in the spring. A sitting is a meeting of either House at the end of which the House adjourns (pauses) until the next sitting. A sitting is also used as a term for a meeting of a committee." No more dissolution of Parliament Since the Fixed-term Parliaments Act 2011 (c. 14) (FTPA): fixed-term election to the Westminster parliament for the first time Under the act a general election is scheduled for the first Thursday in May of the fifth year after the previous general election The functions of Parliament : 1 Law-making Laws define rights and duties of the citizens and of the state 90% of laws come from the government. Government is formed by the party that has won the general election > Laws reflect the programme of the winning party. 2 Taxation Cf. history: kings summoned Parliaments to obtain financial resources (for war especially) Money bills = the budget > providing the government with money to spend 3 legitimacy 4. Representation MPs elected by the people in the country = they hold the power given by the voters and represent them and their interests. 4 Scrutiny and influence Parliament overlooks and controls government: policy proposals, executive actions and expenditure (public money) by looking at accounts and asking questions to the Cabinet members, including the PM. 5 Deliberation Parliament is a place of free debate. Parliamentary privilege = complete freedom of speech inside Parliament, legal immunity. Police cannot enter. The functions of Parliament 1 Law-making Laws define rights and duties of the citizens and of the state 90% of laws come from the government. Government is formed by the party that has won the general election > Laws reflect the programme of the winning party. 2 Taxation Cf. history: kings summoned Parliaments to obtain financial resources (for war especially) Money bills = the budget => providing the government with money to spend Frontbenchers/backbenchers The layout (disposition) of the Commons is very different from the French or American hemicycle (see plan): two sets of benches facing each other, a disposition which reflects the two-party system, and is an indication of the 'confrontational' nature of British politics: officially, there is no 'left' and 'right' in Britain, although this terminology is employed. This is because the Commons sat in a church between 1547 and 1834. After the fire destroyed it, a new chamber was rebuilt which kept the same layout. - Symbolically, the 'spiritual side' used to sit to the right of the Speaker, the president of the House, and is now where government members and majority members sit Statute law | - Primary legislation A - different types Private bills vs. Public bills Local bills vs. Personal bills Money bills vs. Non-money bills Government bills vs. Private Members' bills B- From Bill to Act; the law making-process, the procedure C- Anatomy of an Act Private bills - Local Bills deal with land planning [aménagement du territoire], bridges, canals, roads..., ex.: the University of Wales, Cardiff Act 2004 They also deal with the powers of the local authorities, and the rights of corporate bodies (ex.: BBC) - Personal Bills deal with personal matters, esp citizenship, name changing, divorce, estate, property…. They are now pretty rare. Several distinctions -Money Bills deal with the budget, i.e, expenditure of public money Remember that by convention, that the House of Lords cannot defeat a Finance Bill (government budget), automatically passed after a month - Non-Money Bills with ther matters Government Bills and Private Members' Bills , Government and Private Members' Bilis Government Bills. Most legislation is introduced by members of the government Reminder: a government bill part of the election manifesto is never defeated at a second hearing (but may be later on) Private Members' Bills. Bills introduced by individual members, Renerally backbenchers Man MPs apply but a draw Tirage au sort) is held to choose 20 of them at the beginning of each parliamentary session A famous private member's bill: the Death Penalty abolition bill, MP Sydney Silverman (Lab.) 1955, eventually made it through Parliament in 1965! First Reading is the formal introduction of a Bill to the House of Commons or the House of Lords. The Bill is not debated at this stage, but a date for its Second Reading in that House is set, a bill number is allocated and an order is made for it to be printed. The second reading stage of the legislative process provides an opportunity to participate in debate on the general scope and principle of the bill. Once the bill is adopted at second reading, it is referred to committee for further scrutiny. Après le seconde reading c’est le comity stage Committee stage is where detailed examination of the Bill takes place. It usually starts within a couple of weeks of a Bill's second reading, although this... Report stage gives MPs an opportunity, on the floor of the House, to consider further amendments (proposals for change) to a Bill which has been examined in committee. There is no set time period between the end of committee stage and the start of the report stage. Third reading is the final chance for the Commons to debate the contents of a Bill. It usually takes place immediately after the report stage as the next item of business on the same day. The Royal Assent "La Reyne le Veult" The monarch then signs the bill (the Royal Assent) which becomes officially an Act of Parliament. A Royal Commission may sign the bill instead of the Queen. The day of promulgation is the day of the signature, the first day of implementation of the new Act. Exceptions: Human Rights Act, signed Nov. 9, 1998, came into force on Oct. 2, 2000 to allow lawyers some time to be familiar with the new law. The final stage is still in the hands of the monarch - but is it a real power, since he cannot refuse to sign? The last time a monarch refused to do so was in 1708 when Queen Anne refused her assent for a Militia Bill in Scotland. Acts are then published individually by the royal printer (HMSO) and included in a yearly publication. They can also be found on the LEXIS database as well as on the Internet on the Parliament site. How to accelerate or slow down the debates? 1 The Closure Motion : A closure motion is a proposal that the Commons or Lords should stop debating and make a decision on the matter being discussed. It may be moved at any time during proceedings. The guillotine , The kangaroo Chaque mercredi question au premier ministre Parliamentary question Time PQT Enacting formual Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Par Sa Très Gracieuse Majesté la Reine, sur le conseil et avec le consentement des Lords Spirituel et Temporels et des Communes, assemblés en ce Parlement, et en vertu de l'autorité de celui-ci/ce dernier/ par l'autorité du même/, il est ordonné/ il est promulgué/ ce qui suit : 1969 Representation of the People Act: lowered the voting age to 18 1998 the Human Rights Act : The Human Rights Act 1998 2000 The Constitutional Reform Act 2005 (2005 €.4) European Communities Act: European union 0 1972 The Freedom of Information Act 2000 (2000 c 36) 0) 2000 Different yet similar law system : Based on customary rules (procedures and laws), which Viking or Anglo-Saxon kings applied in their regions. Some rules were common to several parts of the country, but not always. Anglo-Saxons and Vikings shared some legal principles. (Anglo Saxons: 5'' c.; Vikings: mid-?''c.) Historically, William I started a process of centralisation of the law, qui a commencé un processus de centralisation of the law, quand le roi arrive et envahit il possède tout, et va preter des territoires à ses vasseau et eux en échange vont lui offrire allégeance → The domesday book : =>le livre du jugement dernier 1066 le droit va petit à petit s’homenegisié : → trials by ordeal, juggement of god, i. e. the judgment God would find an expression in the outcome of an ordeal the accused had to go through, for instance walking 9 feet with a hot red iron in one's hand. Remember that until 1215, trial was by ordeal, on va organiser une épreuve si l’épreuve est favorable alors dieu est de votre côté alors vous êtes innocent > Here the sign of God on which the verdict depended was linked to how quickly and properly the wound healed volonté de rendre uniforme les coutume sur tout le royaume : > William did not want to change the local laws, he just wanted to make them uniform. > emergence of the common law represents the assertion and affirmation of a central sovereign power. essential in the creation of the nation = - unified legal system + king's power over the land UNIFICATION VIA LAW NOT ARMS > William sent Norman aristocrats to deal with important civil and criminal matters in the local "shire courts" = 'Itinerant Justices' were also called Justices Eyre. Quickly these men started to act as judges. ils emploie les juges itinérant juste pour voir ce qu'il se passe, il fallait 5 ans pour faire un circuit à l’époque , au bout de 5 ans ils sont demandé de représenter la justice. » Itinerant Justices had to settle local dispules ITINÉRANT JUSTICES = les juges itinérants (OR) JUSTICES EYRE ( erant ) NB : la métaphore du temps et de l’espace est souvent utilisé The justices settled disputes according to the local customs. William wanted to respect the local laws, traditions and procedures: he tried to bring together Norman and local legal traditions and practices under his authority. However, it aid not always work well: local customs and courts remained powerful. THE KING'S JUSTICE WENT TO THE PEOPLE, la justice du roi va vers le peuple alors avant on allait voir les seigneurs → recenser les coutumes local, parfois on demandait au juge de prendre une décision, et quand ils rentraient à londre il énonçait leur décision et c’est comme ça est née la jurisprudence. To renforce: renforcer Judges just used the local customs and the old Anglo-Saxon laws. But it was not always easy. So when they returned to London, they started to discuss with the other justices about the laws and customs they had used, and the jugements they had made. → 100 plus tard Henri II plantagenêt first of the angevin kings ( Reign-1145 1189) › It was Henry Il (1133-1189) who really developed and reinforced the system. "Circuits" (the"'eyre") were created, i.e. (= that is to say) regions where four judges travelled, going from town to town. Magistrate (local) courts were created that took off some of the work of the royal courts and made justice easier. HENRY II. THE "FATHER OF COMMON LAW' qust dessus : il commence à créer des entités → 3 court the court of common pleas : les plaintes ordinaires , affaire distinctes the court of inn Exchequer : les impôts The court of the King's Bench : plus sérieuse THE COMMUNE LEY = expression normande qui va donner commun law Gradually, these judges selected the best customs and decided that they should be used by all the judges throughout the country. The low became uniform, or *common" le the whole country the phrase (= l'expression) *Common Law" This selection allowed (permil) judges to build a body of principles, a "national" system of laws, accepted by all, and applied equally everywhere. Gradually they replaced the old local laws and became the law of the whole realm and not just part of it; the common law. NB : → french bashing dans les journaux To allow: permettre, autoriser A Norman-French expression was used: = the 'Commune Ley' (= the law common to all) It became "Common Law" when translated into English. RANULF DE GLANVILL : He decided to write down the most important decisions in one book to make them easy to consult and avoid the anarchy and difficulty of countless local system RANULF DE GLANVILL (DIED 1190) This book was entitled = "Treatise on the laws and customs of the Kingdom of England" (dated around 1188= first systematic codification of English law.° The book also described the legal process (= procedures). = beginning of the codification, centralization, standardization (*variations), formalization of law throughout the land. › He also introduced writs; formal written documents issued (délivrés) by a court, for example : when someone is summoned to court (assignation en justice = writ of summons) > Writ: assignation, bref, requête, etc. His treatise is one of the books of authority (legal textbook) that are also part of the Common law, des livres qui font autorité et qui contiennent les principes sur quoi s’appuyer. - THE BENEFITS OF COMMON LAW › It became a rule that these court decisions should be applied by all the courts in the whole kingdom. Why? + it ensured that the king's law was applied, and that justice was not in thehands of the local lords »= centralization → efficace et facile à appliquer logical, efficient, easler to apply. legitimate (in the eyes of people, law was the same for all everywhere rule of law). Allowed Henry Il to assert his power at a time of civil war and anarchy, country's "collective legal wisdom" maintains legal certainty. La décision est juste et certaine car c’est elle qu’on applique partout. - FROM CUSTOM LAW TO COMMON LAW General Customs The itinerant judges based some of their decisions on common customs. Today, they are absorbed into legislation and are no longer a direct source of law. Pb: how do you define "custom"? A possible definition: "Well, that's how we do things here!" RECOGNISING LOCAL CUSTOMS la coutume doit remonter dans la mémoire du plus vieille habitant To recognise local customs, judges used a series of tests (des “critères"): ›the custom must have existed since "time immemorial!l" in practice, today, calmants (requérants/demandeurs) seek to establish that a custom has the force of law by proving that it has existed as far back as living memory can go, thus turning to the oldest inhabitant as a witness (témoin) the custom must have been exercised peaceably, openly and as of right the custom must be definite as to locality, nature and scope the custom must be reasonable the custom must be clear and certain the custom must be uninterrupted → Today it is very unusual for a new custom to be considered, but there are exceptions. New windsor corporation V. Mellor 1975 a local authority was not allowed to build on land because the local people proved that they had been using the land for lawford sport for a very long time. le juge tranchait si la coutume devait prévaloir sur le bien mobilier, il a réussi à intégrer dans sa décision de justice tout les termes vues auparavant : → "*The villagers have an undoubled right to play games on their green. But whence comes their right? Not in deeds or in statutes. Only in custom from time immemorial. Rarely has it ever been challenged, but it may be useful to draw attention to the few cases on it. To be good, of course, a custom must be reasonable. In I666 the owner of some land complained that the villagers danced on his field and spoiled his grass. But they proved a custom for all the inhabitants to dance there at their free will. The court held that "this is a good custom, for it is necessary for inhabitants to have their recrealion" But when a piece of land was arable land, and horsemen rode over it when come was growing there, the owner was held to be entitled to stop them. The court said: "what is contrary to reason cannot be consonant lo law To begood, too, a custom must be certain." Commun law The fallings of Common Law: > 1 - Inadequate > 2 - Rigid > 3 - Defective 4 - Important people influencing common courts: bribery and corruption 5 - Common law awarded only damages, l.e, financial compensation to complainants, - 6 - Verdicts were often hard, disproportionate, and felt unfair. Common law: essentially a way of solving disputes between people. Judges wanted to find a way to settle disputes [résoudre les litiges] but not really to find an equitable solution for instance if someone; in the case of trespass (intrusion sans autorisation sur un domaine privé), no way of forcing someone not to trespass over someone's land finalement les solutions n'était pas équitable Common law; very rigid procedures. One small mistake in the formalities (wrong name for ex.) or in the paperwork, then the person lost his case and had to start again. Judges were forced to use the existing procedures, the doctrine of precedent, and could not really impose new ones. The doctrine of precedent was based on "stare decisis": "stand by what has previously been decided". (no change) = judges could only use what was available to them. Writ : a sealed letter issued in the name of the King by the Chancellor informing a person that another person had a complaint against him and was going to start an action There was a specific writ for each complaint. (Ranulf de Glanvill made a list of 80 writs.) Not enough ! > Writ: assignation ou bref > The writ contained the allegation of the wrong (le tort causé) for which relief (demande de réparation) was required. It was essential to choose the correct writ or the plaintiff would be non suited (débout). = Wong writ = no case= no action > Not all forms of action were covered = a common law right existed only if a writ was available. If there was no writ where the claimant could fit his claim, he could get not justice, he had no case. Example: trespass of land (infrusion illégale) = a writ for direct wrong, was available ,but there was no writ against Indirect wrongs. If smoke from a fire made by someone on his land invaded your land, there was nothing you could do. Writs were expensive. Sometimes more expensive than the damage = it was useless to sue. Judges could be corrupt. In 1346, judges were obliged to swear that "they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself" It was possible to delay (= retarder) justice by arguing that you were sick or that you could not come to court for natural reasons (bad weather, road cut off, bridge destroyed by a storm..) Generally, justice favoured the rich and powerful. NB : bribery , coruption › To award: to give (accorder) › Damages: financial compensation (dommages-intérêts) » The only remedy (réparation) the common law courts could give was damages: if the defendant was found lable (responsable),he had to pay a sum of money to the plaintilf (= claimant) to compensate him. > But often, money is not what people wanted. Exemple : someone walks on your property everyday = money is not the problem, you want the trespasser to stop trespassing. breach of contract (rupture de contrat) = you want the person to respect the contract, not to pay you money. Common law could do almost nothing about such situations Verdicts were often hard, disproportionate. = considered as unfair, The poorer people were often incapable of paying the penalties imposed on them, because they exceeded what they owned. Common law was just a way of solving problems between people. Its goal was not necessarily to make a fair/just decision. More and more people condemned by common law judges started to petition the King directly to obtain a more equitable decision (= EQUITY), to petition = adresser une pétition, formuler une requête auprès de A Right of petition: fundamental right in England. le chancelier de l'echiquier By the 15th century, people petitioned the Chancellor directly. > Chancellor: head of the Chancery Office (the royal secretariat), where all official documents were prepared. Known as the Court of Chancery when it dealt with legal cases. - The Chancellor studied civil law (Roman law) and canon law ( religious law). = originally, he was both a lawyer and a priest. > The Chancellor was in charge of issuing the writs; he knew what the problems were to issue a writ: délivrer une assignation ou un brei > As on ecclesiastic, the Chancellor put moral considerations above all. He was generally a bishop (évêque), i.e, a religious person, who was generally good and lenient (indulgent) to (envers) the poor, with a reputation for fairess. Started to administer a parallel system of civil law which emphasized "equity" over strict application of the law. → arnolfini portrait equity : a fairer approach to la procédure est plus simple A EQUITABLE REMEDIES: - Equitable remedies are discretionary; this means that they can be granted or refused as the court in its discretion sees fit, having regard to the requirements of the circumstances. - Discretionary power: no one could dictate the Chancellor what he had to do. > Equity has gradually widened ils jurisdiction lo cover many fields › The Chancery Division of the High Court : has exclusive jurisdiction in cases of Trust where the Common Law provides no remedy The Chancellor could issue - "decree of specific performance': the defendant was asked to perform his obligations. - an "injunction', an order requiring the person to do or not do an act so as to redress the wrong done. A rescission and rectification of contract, the right to withdraw from a contract or change the terms of an agreement by accepting the verdict, he behaved in a moral way, cleared his conscience and worked for the salvation of his soul. If he refused to comply with the ruing (arrêt, décision), he could be sent to prison for contempt of court, his assets seized, until he agreed To rescind : résigner 5 - A FEW PRINCIPLES: THE "MAXIMS OF EQUITY" > This discretionary nature of equitable relief has to a large extent been at the origin of what are known as the Maxims of Equity, a set of general principles embodying the philosophical and moral approach adopted by the Court of Chancery. General guidelines illustrating the way in which equitable jurisdiction is exercised: ❖ equity will not suffer a wrong to be without a remedy ❖ equity follows the law ❖ equity looks to the intent rather than the form ❖ he who seeks equity must do equity ❖ he who comes to equity must come with clean hands ❖ delay defeats equity Originally, equity was different from the common law, but it was also judge-made law. Few petitions were presented until the 15th century, but their number increased dramatically in the láth century, so that the Chancellor stopped looking at each individual case specifically but ruled according to a number of rules of equity which served as reference. This also provided more consistency (cohérence)