Comparative Legal Systems - UniMC Past Paper 2019-2020 PDF

Comparative Legal Systems - Prof. Vagni - UniMC - 2019/2020 Sistemi Giuridici Comparati Università degli Studi di Macerata (UNIMC) 68 pag. Document shared on https://www.docsity....

Comparative Legal Systems - Prof. Vagni - UniMC - 2019/2020 Sistemi Giuridici Comparati Università degli Studi di Macerata (UNIMC) 68 pag. Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected]) COMPARATIVE LEGAL SYSTEM 1. Comparison and legal traditions - Comparative law is quite strange subject, it is not a body of rules and principles, it is a method (Rudolf Schlesinger), an approach to study and discover our own jurisdiction assuming another point of view. We study foreign legal systems in order to understand ours. There’s not a set of binding norms that belong to comparative law - New perceptions of the idea of law (law is not departed from interpretation):  Ubi societas ibi ius: law is immersed in society  Ubi ius ibi societas: method to organise society  Law is the same in every part of the world, it’s a universal, general phenomenon of the human world  Law it’s also a local phenomenon, it is general and particular at the same time o With the globalization, the idea of law became also glocal - Different models of law (that depends on the relationship among law and other social phenomena)  Religion law: o Divine origin of the law (ex. Corano, Sunna, Sharia) o Principle of personality rather than territoriality (ex. Canon law is applied only to baptized person, it is not linked to territorial sovereignty) o Power of governance for both the external and inner form (usually norms cannot investigate the inner form of a person, feelings emotions or thoughts – canon law instead does this)  Laic law: o The main idea is the person as owner of rights and duties – juridical capacity o The principle of territoriality o Presence of professional lawyers (rules are applied thanks to lawyers, judges skilled in law – not religious hierarchy) o Rule of law: the State, the authority of State is subjected to law, there are some principles and rules which are over the State itself in order to protect and safeguard citizens’ rights  Constitution: first source of law, safeguards citizens’ rights and freedom limiting the power of the State – auto limitation of the State  English system: has another interpretation of law  Traditional or customary law: law established in time through judicial interpretations of customs translated in principles – it is not written, it is a law that lives outside the State but both citizens and State are submitted to it, because it has an extrastatual origin and the main consequence of this law that everyone is submitted to the same judge (ex. administrative law is applied by the same judge, there is not a distinction with ordinary judges) - Western legal tradition (group of countries characterised by laic law)  2 ways of thinking law: o Law as a science: law comes from the text, its interpretation and its application o Law as a practice (inductive method): law comes from judicial processes, the practice of law  Law is not only statutes (law is different from legislation) and it is not only rules of the State (because there are many other sources) - Method of comparison:  Comparative law is a contextual science (it depends on the context, we need to change tools depending on the context we are working on) Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   Comparison involves history: our interest in history is not an archaeological one, it is impossible to understand who we are as jurists without an historical perception of law – law is really influenced by the person who make the interpretation of it (jurist) 2. Theory of legal systems - Theory was developed for the first time at the beginning of 20th century, during the First International Congress of Comparative Law in Paris in 1900 - period of codification in the Continent, first codification was the Civil Code in France in 1804 and another important codification was the BGB in 1896/1900 – first experience to overcome Ius commune, to create a clear complete and simple law, so law is the text and the text is the law, code is not a documentary text of the law, it is by itself the law  First experience where law assumes an exclusive national dimension (Ius commune was based on roman law and on an open system, with external sources of law, had a supplementary nature – moreover there was lex alii loci with which the judge when there was a gap in the legislation could take a norm from another legal system to solve the case) – there is now dialogue, comparison of similarities and differences of legal system based on the same legal tradition and origins  The Congress wants to underline the need of comparative law – lawyers abandoned the previous experience of Ius commune, because of codifications, and aim to find the “droit commun legislatif”, achieve the unification of law (share rules, solutions and traditions, common principles and jurisprudence, che significa dottrina, quello che gli studiosi della legge dicono e interpretano, mentre doctrine means case law rules) o This approach was mainly focused on the legislation as the main source of law (legislative point of view), it was not correct because the text of law is not always the same that is applied in the courts because of interpretations – moreover they based their approach on a comparison of differences in order to eliminate them and create a uniform common law (modern legal comparison instead is based on differences and similarities among systems) - What’s a legal system? - every legal system is different, there are no identical systems in Europe, nevertheless some systems are more similar than others, some national law share some styles, elements in their systems that look like (they are member of the same family) – in every national law you can identify some constant element (the more difficult to change in a legal system) and some variable elements, so there are many groups based on the different constant elements shared by the national systems  Legal system: jurisdiction of a nation (ex. Italian national system) and also a group of system (legal family – René David who wrote “The legal systems of the world” said that every legal system could be linked to a legal family)  Merryman: in 1969 he wrote that idea of law and mindset of lawyers in the application of law are reflected in rules and law – so are the parajuridical aspects shared by nations which create group of systems (macro analysis of legal system) o Gino Gorla: explains parajuridical – after law -, he wanted to mean all those elements and features that are not strictly legal in the strict sense of the word, there is no explanation of some phenomenon of law that are not considered law in a strict way but together with the national jurisdiction form the legal system  2 main group of system in Western legal tradition: o Civil law: roman-german tradition (French law, Spanish law, German law, Netherland law and Italian law) o Common law: english law, australian law, new zealand law, USA law  This theory is very controversial because it is relative, it is based on private law perspective but if we change point of view (historical point of view, Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  constitution point of view) the position in a certain legal family is modified (it is only a didactive vision) 3. The importance of paragiuridical elements in law: an example - In Re Shoop Case: this case is an example of the influence of parajuridical elements in the formation of the legal system (it’s not important the solution)  Philippine Islands has a mixed jurisdiction legal system (a residual legal system because it shares some common law features and some civil law features) – also Scotland, South Africa, Louisiana, Quebec have this type of legal system (they are not homogenous, but they share this mixed legal system)  History determined the mixing of common law and civil law: in the Philippines this is due to Spanish army domination until 1898 (civil law traditions), when they were ceded to USA (Spanish-American War) – they became a colony of the USA (Californian law, became the model for the administrative relationships and the government structure – public law) o Customary law of the Spanish law could not be more applied in the Philippine Islands courts (the Spanish rules remained only when it was not in contrast with the rules of the Californian State) o In 1907 Philippine Islands started a process for independence which ended in 1946 when they achieved it – the judges in the courts were no more American, the hierarchy did no more include the Supreme Court of US, but it was created the Supreme Court of Philippine Island as final (the influence and legacy left by the US in the Philippine Islands was nevertheless very high) o Codification in Philippines Islands resembles the Spanish Codification, but at the same time some features typical of the Common Law tradition are still features of the Philippine system (ex. art. 8, the case law is a source of law in Philippine Islands or the appointment of judges resembles much the common law tradition) - The main question: Can Max Shoop be admitted to practice law in the Philippine Islands?  Principle of comity: admission without examination if in the same situation a Philippine lawyer is admitted to practice without examination in New York state  What is the main condition to be admitted without examination in New York State? Any person admitted to practice and who had practiced five years in another country whose jurisprudence is based in the principles of the English Common Law  Legal reasoning: o First step: they cannot take a precedent because there was an admission and a refusal in the past of similar cases, moreover they need to investigate what does it mean “principle of English Common Law” and if the Philippines Islands can be included in it o The sources of law in force in US. and UK are different (so this is not the basis of the principle of English Common Law), every system has its own hierarchy of the courts (federal hierarchy of courts vs. national hierarchy of courts) so the principle of English Common Law is more a sort of improving science rather than as an art; as a system of legal logic, rather than as a code of rules (so to say the US jurisdiction is based on English Common Law uses it in a general sense) o The Philippine islands is based on this principle ? The court makes a list of examples in order to demonstrate that even though the Philippine Island is based on codifications (so Civil Law) it is strongly influenced by principle of English Common Law (they investigate some key points in order to achieve this solution)  They speak about quotations of American and English case law and interpretations of case law of American and English legislation Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   Analysing the Philippine Statute Law, the Court claimed that codification is interpreted on the basis of American and English case law (it supports the argumentation of the Philippine codification – circular relationship between law and interpretation rather than linear)  Legal education: Philippine Islands legal education is really influenced on the American and English Common Law system  So, at the end, the Court demonstrates the inclusion of Philippine Islands in the English Common Law thanks to the investigation of parajuridical features and aspects of each legal system or family 4. Mixed systems - Scottish jurisdiction: Scotland is the only example of mixed jurisdiction in Europe, it is very different from the UK and Northern Ireland jurisdiction, indeed it does not belong to the common law tradition due to his history  Pamuk: wrote about the city of his childness and said “I have spent my life in Istanbul on the European shore, in the houses looking foreword the Asian shore. Living by the water with a view of the opposite shore ceaselessly reminded me of my place in the world. Then one day a bridge connecting the two shores of the Bosporus was built. When I went up on the bridge and surveyed the landscape, I realized it was still better and still more lovely to see the two shores at once. Speaking to each shore at once. Speaking to each shore without completely belonging to either; this unveiled the finest scenery of all.” o He gives a very realistic idea of the mixed jurisdiction, it looked at both common law and civil without belonging to either (Scottish law as a bridge, as a symbol of comparison, there are people who works in order to build the bridge and comparatists who want to build a European tradition, as a tool of communication between two different traditions and as a new conception of comparison, legal traditions can be analysed with a special not territorial way, common law and civil law are two different grounds of legal culture but this two can coexist together in the same territory)  There’s no agreement of the definition of mixed or polyjural: on the one hand the term polyjural emphasize the fact that both the traditions influenced this system and the contribution of each tradition is clearly distinguished, on the other side the term mixed emphasize that the two traditions cannot be distinguished, so there is an authentic mixing and they cannot be separated  Different approaches towards mixed jurisdictions (with didactic aims): o Taxonomic approach: typical of prof. Palmer, who wrote the “mixed jurisdiction worldwide”, where he claimed that the mixed jurisdiction has a marginal role in the description of a legal system because it is a not well-formed jurisdiction, its development and evolution of common law or civil law has been interrupted o Genealogic approach: prof. Orucu, all the legal system can be assembled in a genealogical tree, so there are ancients system who influenced with their legal legacy the other systems, every system has been influenced by other systems (with language, history, culture indirectly) but the more evident are the younger systems (every system is actually mixed, so mixing has not a value in the study of legal systems) o Historical – Comparative approach: the theory point up the history in legal comparison, it is very important because tracing the path of history we are able to distinguish and select different experiences, cross points between civil law and common law – so the result of the mixing can be a model in order to analyse the dialogue of common law and civil law in different contest in the future Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  Historical development of Scottish law: o Medieval period: King Dunchan conquered the English territory on the north, and it concluded with the Independence Treaty in 1328 o French military alliance: strong relationship between Scotland and France in order to defence them from England, and this influenced also legal culture, scholars studied in French universities with civil law traditions, so they started to apply their local law on the basis of civil law tradition o Court of Session 1532: Supreme court of Scotland, even today is the highest court of Scotland, their decision was considered sources of law and they are still binding – in 19th century it was distinguished in Higher Court (first grade) and Court of Session (final grade) o Treaty of Union 1707 (there was the opportunity for the Scotland to unify Supreme Court of UK with the Supreme Court of Scotland for the civil cases in Scotland– but when the judges (most English, Scottish judges were the minority) decided for Scottish cases they use English approach when applying Scottish law)  Sources of law until the Treaty of Union (with the Court of Session):  By the middle of 17th century, there was the publication of a set of very important and authorative books, book of authority (they are not legal literature but they are considered as sources of law and taken in consideration by the courts of justice in delivering cases) – most of the cases are covered, the books comprehends a collection of all institutions of private and criminal law (for this reason they are called institutional books and the authors are called institutional writers)  Viscont Stair, “The institutions of the law of Scotland” 1681: the intent of the author is to describe what are the sources of Scotland civil law (private law) – the book is very influenced by the book of Grotius “De iure belli ac pacis”, because Stair studied in Netherland, so he wanted to adequate the theory developed in the Continent (specially Grotius) to local law  Example: Stair in a passage of the book explains the sources of contractual obligation and says that in English law a bare promise is not binding, because in order to be binding it needs a consideration of the promisee (that is the presence of a bargain for both parties, an exchange between promise and counter promise/performance) whereas in the Continent the contractual obligation is based on an agreement – Scottish law instead is different, because in Scotland a unilateral promise is binding This passage was considered as a source of law, even if it was then covered by case law (the courts now recur to cases that refer to the passage) – ex. in our system the possibility of offer to the public is in art. 1989, whereas in Scotland it is established by the passage of Stair  G. J. Bell, Commentaries on the Law of Scotland and Principles of the Law of Scotland 1800: the book has thousands and thousands quotations to civil law cases (Ius commune tradition) or jurisprudence (so matrix of the book is civil law) – English scholars Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  (from 1707 till 19th century) misunderstood these sources of law and tried to set them apart, covering them with a set of English cases (took as examples of the application of Scottish rules, in order to separate them from the civil law jurisprudence and interpret them with common law tradition)  Switch of the pendulum: prof. T.B. Smith of Civil Law at Edinburgh University (it doesn’t mean he teaches private law, but civil law tradition) started to speak about the comparison among mixed legal systems as a “medicine” to restore the legal tradition of Scotland – he started to talk with professor who taught law in South Africa (Cape Town), because SA tradition was a similar system to the Scottish law tradition, because it suffered the settlement of Netherlands and England (resemble the historical development of Scottish Law), so according to Smith the dialogue between this two traditions could be a cure against English influence  1953 he wrote a paper published in the South African Law Journal, named “Scotland law under two princes”, where he wanted to restore the double dimension of Scottish law (especially the civil law dimension, neglected since the Treaty of Union)  Why it is important? – he was part of the Scottish Law Commission (one of the two most important independent authorities appointed in the middle of 20th century, together with the English Law Commission), who had the role to produce legislative proposals (who became bills of the Parliament), and worked for the restoration of the civil law tradition in Scotland, in order to demonstrate the double nature (mixed system) of Scottish law o Scotland Act 1998 (Scotland Act 2016): from the 1707 till 1998 the Scottish parliament was not active, because it was unified with the English one, but from this year the Scottish parliament was restored thanks to the enactment of the Devolution Act, which recognised for the first time a sort of autonomy of Northern Ireland (with the establishment of a national assembly) and restored the Scottish Parliament after two centuries  The Act was accompanied by a set of provisions about the distinction on the attribution of legislative competences of Westminster Parliament and Scottish Parliament (ex. human rights law is competence of WP, so human rights act is applicable in all the UK territory, whereas private law is competence of the SP, so WP cannot enact on this topic, it will overlap the competence of SP)  Why it is important? – the double dimension of Scottish law was restored (even now Scotland is still a mixed jurisdiction), the institutional writings where discovered and appreciated again, making them applicable as source of law in Scotland - Why this tale is so important ? – on the basis of the investigation of Scottish system, some theories were developed, which were addressed to the future of European law  Superiority of mixed legal systems: Starting from the Treaty of European Community and the Maastricht Treaty of EU of 1993, the member states underwent a deep modification of their legislation and sources of law due to the application of the EU legislation – of course there are some subjects of national states that are intangible, that cannot be influenced by Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  EU law (ex. Lisbon Treaty of EU established that property law is not a subject where the EU has a legislative competence) o So, the EU realised a sort of convergence of the different legal traditions of the member states, accelerated in some fields of law under the competence of EU, but as a result of the work and policy of EU this convergence was a sort of driving force also for other aspects of the law o The Lisbon Treaty forced again the idea, the need to abandon the Union as a market union, to accept the idea of a Union based on law and protection of human rights – human dignity is put at the centre of the policy of the treaty (art. 2 speaks about human dignity of the person as the main aim of the policy of the treaty and about the constitutional principles of member states) – the treaty itself suggest the convergence of legal traditions of member states even if it speaks only about the topics under the competence of EU (at least concurrent competence) and pointed out the need of an harmonization of the legal cultures in the EU and accelerate the process of a gradual convergence of national law in the EU  What were the paths to follow to achieve this result? - there are 2 kind of difficulties:  Differences between legal rules of the national states  The types of national states  Why it is simpler to harmonize the law of the States within the same legal family and it is more complex to harmonize the law between two different legal families? – because the law of two legal families converge according to their roots and their parajuridical aspects, so the great debate is how to realise the convergence of civil law and common law?  According to a theory, mixed jurisdictions offer a useful model for the harmonization of the European Private Law, because in this system (in particular Scotland) this mixing has really happened, so we can follow the path of this system – so some scholars started to speak about the superiority of mixed systems, because they were able to make a dialogue between two different traditions and find the right balance, so there’s no need to imagine an hypothetical model the mixed system itself suggest a model  This idea can be criticized on the basis of the following considerations:  Law is very close-connected with history: the result of the mixing in these systems (in particular in Scotland), is due to a particular history – we cannot transplanting solutions which are so close- connected with a specific historical event in another contest – indeed, law is a contextual science you cannot depart a solution from its context, because it doesn’t work in another context  Legacy of Ius commune: institutional writings have the merit to bring with them the legacy of a long set of centuries (from the 16th to 19th century), which cover a period of Ius commune (both civil and common law were shared) – up to the codification the European area was characterized by a common tradition (Ius commune) - during this period legal traditions shared sources of law, a common language (Latin), a common jurisprudence o Scholars pointed out that England participated in this tradition – ex. there where ecclesiastical courts where the roman canon law was applied and there was the Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  Chancery Court whose solutions were highly inspired by roman law and canon law – so it was not rare that a judge of a court in the Continent quoted a solution given by another judge in another court in another part of Europe or even England o This shared tradition was based on roman canon sources of law, so on the one hand there were the Ius of each jurisdiction, but these coexisted with the application of roman canon law and his jurisprudence all over Europe  This Ius commune was crystallized by the Scottish institutional writers, so Scotland offers us the important legacy of the law of the past o The period of Ius commune was interrupted in the Continent with the advent of codification, which neglected all the past traditions and all the rules were substituted by clear provisions incorporated into the codes – this period covers only one/two centuries (from the 19th century to the end of 20th century) whereas the historical tradition of the past covers a huge amount of centuries, so why not we recover the past tradition in order to meet European private law tradition? (of course, Scotland is important because offers us the legacy of this tradition)  Comparison as a tool of communication: recovering Ius commune, which was very close- connected with the structure of the society of that time is quite impossible, just an utopia – nevertheless a very important contribution was given by Scotland to the solution of European private law: the comparison as a tool of communication – in order to harmonize we need to dialogue and compare, so the legacy of Scotland is the importance of a comparison based on cultural attitudes o Comparison is not important as a geographically based dialogue, but as a dialogue between cultures within the same system  Example: European Commission financed a research of scholars on the formation of European Private Law and the alignment of principles, in special within the topic of contractual law – the most important project “Common Frame of Reference on Contract Law” gives the definition of contract (what is contract, what are the requirements for a binding contract) which resembles very much the definition given by Stair in “The institutions of the law of Scotland” – indeed the definition comprehend both consideration (requirement in English law) both cause (requirement of our contract law), stating that contractual obligations are based both on agreement or on unilateral promise (so investigating Scotland was fundamental to find the solution for this project)  Another project “Principles of European Contract Law” again gives the same definition of contract as in the book written by Stair 5. Medieval common law: traditional styles of the common law (historical perspective, since the common law was not divided in two parts by the codification we need to start from the medieval times) - Common law definitions:  As English legal tradition (see above, opposed to civil law)  As law in force in England: law applied in the territory where the Westminster Parliament has its jurisdiction  As system of sources of law: common law may refer to law in general (in this case public law, civil law and so on) or to a particular source of the English law (law developed in the courts since medieval period) - in the last meaning, common law as case law is opposed to statutory law (the 2 main sources of law in a system) and within the meaning of case law, it is distinguishable from the equity law Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  o In order to investigate the second and the third, we need to start from the historical developments, and since English law was not divided in two parts by codification, we need to start from the medieval period - English legal traditions: English law comes out from the activity of the common law courts (vedi sotto le 3 corti inglesi), it has no relevant breaks with the past, indeed the core ideas, rules, principles and terms persist from the medieval law (ex. Property law)  Periods: o 11 – 14th centuries: Norman conquest o 14 – 17th centuries: the Courts of Westminster have a separate position –> class of jurists  1066: King William I of Normans conquered the territory of England and established a feudal system (before the feudal system there were land of nobody, instead feudal law was binding in all the land, and with the ceremonies of investiture the King gave lands to his most trusted man, who followed him during the battles – language was a mixing between French and Latin) o With the creation of this system there was the settlement of a centralized administration of justice, the Curia Regis court was established, and people could sue to the court in order to receive justice from the court of the King o Ultimate ownership of the lands was of the King, the landlord has not the ultimate ownership, he had the right to use and dispose of the land, to leave at his heirs but he had not the absolute ownership, because he had the ownership of a land related to the governance of the territory  The landlord was also the administrator of the justice in local courts, in concurrence with the King’s court, because people preferred to sue the other party in the local court before do it in front of the King’s court  Odalic evidence in the local courts (archaic and prehistoric way of giving evidence of who was in the right and who was in the wrong) – in the King’s court there was instead a jury, initially a number of witnesses who give evidence of what happened (very modern for the period, it was preferred because the plaintiff did not risk his life) - Forms of action: a plaintiff had to purchase a royal writ from the King’s Chancery (Chancellor, highest counsellor of the King with canon and roman law education), in order to originate a suit in a common law court (writs were fixed formulae in relation of different types of action)  Praecipe writs (1066-1300): the sheriff was told to command the defendant to do what was demanded by the plaintiff or else to come before the king’s justices to explain why he would not (two parts: order and action) – ex. Writ of right for a person who pass the boundary of another land, so the owner want to recover the ownership of the land and exclude the other part; he had to ask the correct writ asking to the Chancellor (and it was delivered after the payment of a tax), then the Sheriff order the invader to respect the boundary or to come before the king’s court in order to rise an exception and discussed it before the king who will judge him o In the first part, the King himself was the judge, but as the time passed, he divided his role in 3 courts, which were called Courts of Westminster or Courts of Common Law, but the three were:  Court of Common Pleas – general, common controversies and affairs between common parties  Court of King’s bench - events who violated social peace (but the division between public and civil law is not so strong) Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   Court of Exchequer – taxes, financial law  Ostensur quare: when the courts started to be articulated, structure of writs changed: writs constituted an action, the defendant was supposed to come and explain his disobedience of the command (so it was an introductory document of the process) – the language (French and Latin) permitted communication between systems and lawyers of England and of the Continent o The process was divided in two parts:  Pleading (fare causa): first phase of the process before the judge where there was the contradictory between plaintiff and defendant , so the plaintiff exposed his reasons and the defendant could confess (admission of the truth of facts of the plaintiff) or deny (defendant rises an exception of the facts or add new facts that changed the prospective of the entire situation) - then the judge made a judgement on the basis of his legal opinion on the facts identified in the courts  Before the jury: jury had to say if the fact corresponded to the truth, and if the judgement of the judge was correct o Since the writs corresponded to a specific procedure and the formulas were rigid, it was difficult to adapt the facts to the specific formula (ex. writ of debt was for the restitution of a sum of money – in the document established by the Chancellor the plaintiff had to specify the exact amount of money he wanted to obtain as restitution, but if he was wrong in the identification of the sum, he could risk to lose the cause (also if during the process the judge discovered that things didn’t go in the way the plaintiff exposed, he would lose the cause)  New writs as the needs of people increased: but the local courts were damaged by this production of new writs because they lose their power (since the people preferred to sue the king’s court), so the landlords made a rebellion and asked the King to stop this production, and at the end it was made an agreement called the Provision of Oxford (1258), with which the King promised not to deliver new writs (the production was stopped) – link between the needs and power of Landlords and the needs and power of the King (the Chancellor decided to respect the provision in order maintain peace, but nobody prevent him to apply the old writ in similar cases) o Writ of trespass (violazione): writ to sue the King’s bench  It had two requirements:  Vi et armis: the trespass had to presume physical violence and duress or the use of weapons in order to attack a person  Contra pacem: the trespass and the use of violence had to be so evident that disturbed the community and the social peace  3 kind of trespass:  To land  To chattles (beni mobili o schiavi)  To person  It was used by the Chancellor to enlarge the King’s court jurisdiction, so he started to deliver it not only on cases of physical duress but also in indirect duress (ex. violence caused not by the defendant but from the servant or the animals of the defendant) o No remedies no right: if there was a writ, there was a remedy and the plaintiff had a right – if there’s not a remedy, there’s not a right – enlarging the extend of the Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  writs permitted the enlargement of the rights of people (so in common law rights are formed through the procedures, inside the processes) o Abolition: this kind of actions were abolished with the Judicatures Acts in 1873- 1875, two different statutes that abolished the old writs and substituted them with new form of writs  Maitland (very famous scholar of the end of 19th century): the forms of action we have buried, but they still rule us from their graves (they are still actual, because a law student today needs to know the forms of actions in order to understand the substantial law of common law)  Examples: a contract could be defined as an agreement (as we usually define it) or as a promise or a set of promises which the law will enforce (as common law define it, and we could understand with the writ of trespass)  Chancellor started to deliver the writ of trespass also in similar cases, and in the 16th century there was a case where a physician did not take care of a horse of a farmer and it died and the Chancellor decided to extend this situation to the misfeasance and delivered the writ of trespass due to a moral duress because his misfeasance constituted a moral violence (there was a promise of the physician to take care of the horse but he had not kept his own words and there was a wrong performance of the promise, resulting in a moral violence on the chattle of the farmer) – protection of the wrong performance of contractual obligations (misfeasance – infrazione/negligenza)  But also the lack of performance (nonfeasance - inadempienza) need to protect so the Chancellor, helped by the canon law where a promise binds the promisor (a person need to keep his word in order to protect the trust of the other party, or he will be guilty of laesio fidei, the breach of promise is a breach of trust and reliance of the promisee, and it is a moral violence), apply the writ of trespass on the case of assumpsit (that comes from the Latin word assumpsit that means that the promisor assumes the protection of the trust and reliance of the promisee) – so the contract is based on the reliance of the promisee who benefits from it, when there’s a bargain (performances are exchanged, even if gratuitous promises are allowed) 6. Equity - Equity: when we speak about equity we speak about a specific source of law (for this it is written in the capital form), created through the Court of Chancery (in our civil code it is cited only one case when the judge can decide according to equity, for example when it is difficult to determine the real amount of damages in a breach of contract the judge can recur to equity)  Origins in the 14th century: even if, after the Provision of Oxford, the Chancellor extended the application of writs for similar cases, there were specific cases or controversies when there were no solution or there was a remedy but its application by the Court of Westminster achieved an unjust result (ex. writ of debt and the possibility to lose the case for a mistake in the determination of the amount of restitution, even if it was in the right side) o So on the basis of cases like that, petitioners started to ask for the mercy of the King, that is, please judge and value again the cases because the application of the law of the land by the Court of Westminster produced an unjust result (division Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  between law and justice, because Westminster Court established the law but this law may be departed in some cases from justice) o The King was not obliged to follow the petition, it was his discretionary if answer or not, to take into consideration the petition or not – as time passed, the King asked his Counsellor this question, to valuate and answer to the petitioners who wanted to interrupt these conditions  Chancery Court emerged historically as a reaction to the strict formalism of the forms of action of the common law (who lead to a divergence between law and justice), in order to conform law with justice – to do so, the King asked the Lord Chancellor to valuate some cases again  Year by year, the petitions rise in number and so, another jurisdiction emerged, the one of the Chancery Court, whose judge was the Chancellor himself  Dualism common law – equity: the relationship between Court of Chancery and Court of Westminster was not the same of a first instance court and a second instance court, because they were “parallel” courts, so there was a dualism between common law and equity – o Chancery was not a court of appeal, it means that the lord chancellor could not reform the judgment given by a court of common law (he could not say officially the judgment was void or incorrect, nevertheless he could say the law was applied, but it made no justice, so I prevent the execution of the judgment of the court of common law giving another remedy to make law more conform to justice)  It was not a court of appeal so there was not a duty of the Court of Chancery to take into consideration a case, so its jurisdiction was discretionary – the Lord Chancellor could decide not to decide the case, on the basis of the reasons presented by the parties  In every modern jurisdiction we have a principle according to which the judge is obliged to answer all the question presented by the parties – indeed, if there’s not a correspondence between what is asked and what is answered, this lack of correspondence and conformity leads to the voidance – this is not the case of the Chancery Court, because it could decide to set apart some question or the entire petition and not answer to it  Supplementary role and discretionary nature of Equity: the role of lord of Chancery was supplementary, that is, the plaintiff could not recur directly the Chancery Court, but he could sue to the court of Chancery only in the case he had previously sued a court of common law, or, alternatively, if there wasn’t a remedy o Main features of the proceedings before the Chancery court (procedure before the court did not resemble the one before the common law court):  Common law courts were characterised and structured according to the forms of action (pleading and the judgment by the jury), while Chancery court, in order to sue it, needed a writ of subpoena, that was a writ that was the same for every case, because its structure was simple and contained the petition of mercy (it was the introductory document of a procedure, which resembled very much the canon law procedure, not the one of forms of action – so its matrix was canon law but it was applied in the court of civilians)  The lord Chancellor’s remedies were different from the remedies and rules of forms of action: they were inspired by the roman canon law as well as Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  by common law, but they were changed, manipulated, adapted in order to conform law to justice - Maxims of equity: in order to sum up the main features of this new jurisdiction, we can talk about the “maxims of equity”;  What was the main connection between Court of Chancery and Equity? the Lord Chancellor decided on the basis of what was equal and good (ex aequo et bono) – so, over the time, the court of chancery started to be called the court of equity because the procedure was according to good conscience, to equity, to what is fair and equal  Maxims of equity: they are brocades and aphorisms formulated in the 18th century in a pamphlet by Richard Francis, in order to try to collect a set of maxims which described the jurisdiction of the court of Chancery (how Lord Chancellor worked, how he judged, which were the main features of the procedure etc.) o They’re not sources of law, they are not binding rules, they are a sort of description made by the scholarships of the way of operating of Lord Chancellor, of the structure of the court, of the values and principles applied by the Court – so they are useful because they explain the main features of this jurisdictions  12 aphorisms (or maxims) are the most important (there are many others): 1. Those who seek equity must do equity : there was a preliminary valuation of the petition and the Lord Chancellor took it into consideration only if realized that the person was in the right side, it was honest 2. Those who come to equity must come with clean hands: you need to be honest and in good conscience in order to sue the court of equity, otherwise the court do not allow you to be admitted in the cause 3. Equity follows the law: law is for common law of course  Interpretation 1: equity respects the common law – the lord Chancellor could not void or reform the judgment of the common law courts, it is not a superior court, there’s a parallelism between the chief jurisdictions (dualist system)  Interpretation 2: equity imitates common law - there are some remedies, some writs in the forms of action that the lord Chancellor uses in different contexts, he extrapolates and depart the words used in the common law judgment from the common law context and uses them in another context to achieve a similar solution  Example: – ex. doctrine of estoppel, a remedy given by the court of Chancery in order to prevent a person to contradict his previous behaviour causing a damage to another party: you can’t make an action before a court when this action contradicts a behaviour you assumed for a long time inducing the defendant to rely on your behaviour  This concept is based on the idea of faith, trust and reliance, a core element of the jurisdiction of equity, because of the concept of laesio fidei (infringement of the trust, trust and reliance of another person), from which the jurisdiction was deeply inspired, indeed many remedies developed by the Lord Chancellor had the aim to give a fine (multa) to the person who wanted to infringe or disrespect the faith of another party in order to make profit. Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   The doctrine of estoppel is one of this examples, indeed lord Chancellor uses the word “estop”, “estoppel” (from the French “stop” which means to stop a person from doing something) in order to stop the plaintiff to sue the defendant when the action was in contrast with a behaviour assumed for a long time by the plaintiff on which the defendant rely  The word “estoppel” was used in the early English Common law and in some cases brought before the Westminster Court, for example there was a writ sometimes called “estoppel” given to the wife against his husband, in the case he infringed the rule not to sell or transfer the dowry (dote) of the wife without her permission with a contract (at the time it was an obligatory contract, not a real contract) and the purchaser sued the husband in order to oblige him to perform the contract (so, the wife could rise an exception and estop the action of the third party, because it was in contrast with the mentioned rule) So: the legal reasoning of L.C. is based on a sort of imitation of common law, that is, he picks up the word “estoppel” and uses the word “estop” in a different context to achieve another solution – indeed the word used in the Chancery Court had no relationship with the case of the wife and husband (with the particular content within which the word estop was used in common law courts), L.C. set aside the context from the word and imitates common law using the same word to achieve a similar solution in a different context (silent borrowing, that means L.C. borrowed rules and principles without saying he was borrowing, he presented the solution as his own invention) 4. Equity will not assist a volunteer: equity doesn’t assist a person who purchased a right gratuitously - in the case of a controversy between a person wants to be recognized as the owner of the right, and the other pretends to be the real owner by having purchased it, the L.C. always prefers the reason of the onerous purchaser 5. Equity is equality: it makes equity between the parties 6. Equity looks to substance rather than form : equity rise in order to contrast formalism of the forms of action, for this reason the remedy of equity is not stopped by formalism, the L.C. tries to look at the substance of the event instead of the form 7. Where the equities are equal the first in time shall prevail : when there are two persons in the right side, the first in time shall prevail - Why it was so important the work of the Chancery Court?  The Court of Chancery does not exist anymore today, because it was abolished – it began with the Judicatures Act (1873-1875), which abolished forms of action and lead to the abolition of the Court of Chancery Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  o So, they introduced an important reform of justice and organized again the structure of the courts, indeed the Chancery Court was substituted by one single jurisdiction: The High Court of Judicature articulated in 2 courts, the High Court and the Court of Appeal established in London, but by the end of 19 th century the structure of the “superior” courts was the following:  The High Court  The Court of Appeal  The Appellate Committee of the House of Lords (second house of Westminster Parliament, 12 members sit also like judges of last instance for the cases coming from England and Scotland)  The abolition of Chancery Court doesn’t mean that equity was extinguished, the equity jurisdiction was abolished but not the sources of law, that is, the substantial rules that over the centuries formed through the operation of the jurisdiction of the Chancery Court (equity law as a set of remedies developed within the Chancery jurisdiction are still part of the common law and still sources of law) o Today they are applied by the same judge with prevalence to equity remedies over common law values (if there’s a remedy in equity law for a specific case, judge apply it) – so the two jurisdictions were unified and again, these two branches of law are part of the English law of today (indeed if a lawyer wants to specialize his professionality, he usually specialize in equity law or common law, so this dualism of doctrines/jurisdictions remains in the English system) - Examples of main remedies developed within the Court of Equity (they are useful to understand the maxims described before)  Specific performance: remedy given by the Court in case of breach of contractual obligation – so the contest of the remedy is the contract, not the extracontractual liability and it rises in the case when a person isn’t satisfied by the pecuniary damages, because sometimes the breach of contractual obligation cannot be compensated to pecuniary damages o Example: Jenny has recently won a large sum on a lottery. She decides to buy a country house with room to keep a pony and would like to live close to her parents. She finds a beautiful Elizabethan manor house just a few minutes from her parents’ home. It is perfect and there is nothing similar to it in the area. After the seller and Jenny have exchanged contracts, the seller receives another offer for the house. It is twice as much as Jenny was going to pay. The seller decides that he can afford the compensation he will have to pay Jenny for breaking the contract and tells her the sale is off. Jenny does not want compensation, she wants the house, because no other house will meet her requirements  In this case pecuniary damages are not an adequate remedy, they don’t compensate the interests of Jenny, so she could sue the Lord Chancellor to ask for a specific performance of the obligation  In Italy, the art. 2048 we meet the expression “specific performance” in the cases of extracontractual liability – so when the damages don’t satisfy the interest of the creditor, he could ask the judge to oblige the debtor to specific performance – of course is a discretionary power of the judge, he’s not obliged to deliver the remedy  Our supreme court, interpreting art. 2048, said that this remedy rule can be applied for analogy also in the cases of pecuniary damages due to contractual breach Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   If we read the art. 2023 and following (about pecuniary damages on the cases of contractual obligation), they don’t mention specific performance, nevertheless our supreme court with a constant jurisprudence (case law) established that the rule of this remedy can be applied on the basis of analogy in the cases the pecuniary damages don’t satisfy the interests of the creditor  Example: two neighbours make a contract and one of them obliges himself not to rise the wall at the boundary between the two properties – but after that he infringes the obligation, breach the contract and rise the wall, covering the light of the other party – the interest of the other party is not to obtain a sum of money, because it doesn’t satisfy the aim he wanted to achieve with the conclusion of the contract, he want to obtain the result, that is, the judge order the debtor to restore the situation as it was when the contract was concluded (condemns the other party to a specific performance) o Specific performance is a substitute of the pecuniary damages – usually at that time the judgment of the Common Law Court which condemns one of the party to pecuniary damages could not be declared void by the Lord Chancellor, but he could add another remedy and so could give the specific performance to the creditor as an alternative to the judgment given by the Court (so if you don’t want to perform the judgment and not oblige the other party to pay because the payment doesn’t satisfy you, you have an alternative remedy, that is, executing my (L.C.) judgment and oblige the party to perform)  The judgment of the L.C. was most of the time executed, because the lack of execution, the disobedience of the order of L.C. was considered contempt of the Court (oltraggio alla corte) – the person who was guilty of this contempt was sent to prison, so was very hard not to perform the order, the decree of the L.C. o Specific performance is a remedy of today, commonly applied by English judges in prevalence to pecuniary damages in the cases where the requirements of the application of a specific performance are satisfied (ex. in an obligation to do something, you cannot force the debtor to do something, you can only oblige a third party to do something and the debtor to pay the performance of the third party)  Injunction (inibitoria): it is a sort of urgent remedy in order to stop a situation, refraining and preventing a damage, so the Court order to a party to refrain from doing, or possibly to do, a particular act (it is an interim measure) o Example: David and Victoria are well-known celebrities. Their nannies have signed a confidentiality agreement, stating that she must not reveal any information about the family. The nanny breaks this agreement and sells a story to a newspaper alleging that David and Victoria’s marriage is in trouble. If the story is published, it will have a serious effect on their reputation, so they are not going to be satisfied with receiving damages for the financial loss caused by their nanny’s breach of contract. What they want is to stop publication of the article in the newspaper, because once it has been published, it will be too late because the damage cannot be reserved. Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])   They can sue the Court to obtain right away an injunction, that is, to stop the publication in order to wait the procedure and valuate if the nanny has the right to publish or not.  Trust: one of the most important remedies of the equity jurisdiction is trust, because it is a case of global success of the L.C. who created this rule, doctrine at the end of 14th century that is still used today as a famous institution in the trade world and in the world of finance o Example: there’s a father, who is the landlord of a specific land as received it from the King in order to administrate it, but it was quite difficult because there was a set of tenants, a set of affaires etc. – imagine that the King asks him to follow him in a war, a very long journey and he could not be sure to come back home from war, so he had the problem on how administrate the rule on his absence and most of all, how to protect his son, very young but not so smart and not ready to administrate the land – so the landlord asks the best friend to rule the land for him, but In order to do it he had to be the owner so the landlord make a sort of pact (not a contract) with which the landlord transfer the ownership of the land to the best friend so he is the official owner for the law and the King but he had to administrate the land in favour of his son (he receives all the benefits of the land, but the trustee (invested of trust) can receive a percentage of the money), so when he will be 20 years old or when the landlord will come back home he will have to transfer back the land  Trustee could disrespect the pact affirming their ownership, but beneficiary (the son) started to sue the Common Law Court saying that “the trustee is the legal owner, but the ownership was transferred in order to benefit me, he was a trustee, but he doesn’t perform his fiduciary obligation” – the Court rejected the question of the beneficiary, because they say “the ownership of the land is of the trustee, the legal owner is only the trustee so he can use the land as he wants” – the beneficiary said “the trustee promised to my father to benefit me”, and the Court claimed that “we don’t know If there was a promise, but in the case there was, this promise to your father is not enforceable by you, you cannot enforce a promise that the trustee made to your father”  Beneficiary started to sue L.C. to submit a petition of mercy, because the solution given by the Common Law Court was conform to law but not conform to justice – the trustee had used and profited of the law to achieve an unfair result – the L.C. could not say the beneficiary was the real owner of the land, because equity follows law (he could not say law was wrong) but he could give relevance to a particular fact of the case that was not relevant for the Court of common law – in this case the L.C. said that the promise given by the trustee is a fiduciary promise, and the lack of performance of this promise is a sort of fraud, and equity is against fraud, does not permit that law is used to achieve a fraud (so the trustee was the legal owner but the beneficiary was the equitable owner, that means that the content of the right of the beneficiary was not the land, because the legal owner was someone else, but the gain that can be produced by the land)  The trustee is free to do what it wants with the land, but the result of the acts made by the trustee are characterised by this fiduciary obligation – it means that the beneficiary have the right to recover the gain of the land Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  everywhere it is – imagine that a fund is settled in trust from the settlor (landlord) to the trustee, so according to common law the trustee is the legal owner but the beneficiary have the right on the gain of this trust fund, so if the trustee sell a property the money paid by the purchaser can be pretended by the beneficiary (because his right is departed from property and attached to money) – so L.C., in order to achieve this aim, let the beneficiary sue the trustee with an action of tracing (to trace, to follow the path of the good, properties which are part of this fund)  So if there’s an hypothesis of mixing, that means that if the trustee sells the property and uses the money for himself, the beneficiary can sue the trustee to recover the money – but if the property is given to another person and this is in contrast with the rules imposed to the landlord to the trustee, the beneficiary can sue the third party in order to oblige the third party to give the gain of the land to the beneficiary – so the fiduciary duty follows the land of the trust (it is ambulatory) and the beneficiary can follow the path of this trust fund  The third party prevail in the controversy only in the case he had purchased the land in good faith and with an onerous sale (equity will not assist a volunteer) – so the beneficiary can only sue for damages the trustee - Why it is important this institution (trust)?  It is applied still now, but lawyer who are not familiar to English law cannot understand this institution – indeed they usually are wrong because they say there is a double ownership on the land, whereas the right of the beneficiary is not a real right (it was not the legal owner), he had a right in personam that he could oppose to third parties (equity acts in personam)  Thanks to action of tracing and the possibility to oppose the fiduciary duty to third parties , this fund is autonomous, it is separated from the personal fund of the trustee (it happened that he had his personal patrimony and his patrimony as a trustee), so the personal creditor of the trustee cannot satisfy their credit with the lands of the trust (so the trust fund is completely separated by the patrimony of the settlor, because he is no more the owner, and the patrimony of the trustee)  It became very famous and used with the Convention on Trust on 1985, ratified by Italy (for this reason we know this institution) 7. Rule of law - The idea of rule of law is an ancient idea : British lawyers considered it as a concept of the 19 th century, but the concept had its roots deep in the past. Some authors have traced back the origins of the concept to Aristotle’s Politics:  The rule of law, so the argument continues, is preferable to that of an individual; and on the same principle, even if it be better that individuals should govern, they should govern, they should be appointed only as guardians or ministers of the law … He, therefore, who would have law rule seems to advocate the exclusive rule of God and Reason; but he who would commit the government to a man adds a brutish element. Appetite is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. Law may thus be defined as “reason unaffected by passion”. o Aristotle underlines the problem of the origin of the rule of law: everyone needs to be subject to rule, and the ruler needs to respect law as well as the citizens. It Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  is a sort of safeguard to prevent the ruler from violating in particular the fundamental rights  The core aims of the English rule of law traced back to medieval time, indeed there are documents which influenced the development of rule of law: o Magna Charta 1215: addressed as the first bill of right of the English system, but in reality it isn’t a bill, it’s a document to restore the peace in the battle with the barons - these rights concerned legal estates (feudi) and the most important was the fee simple estate, the owner of this estate had the use of the land, not the property (the landlord could use, delivery the land, and the period of ownership was undetermined) - the barons’ rebellion was about them who wanted to be free from a set of obligations made by the king (the aim of the Magna Charta)  Magna Charta recognizes some procedural guarantees, in particular in 2 sections, 39 and 40, which were translated becoming famous as the most safeguard rules:  Ch. 39: no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land  Ch. 40: to no one will we sell, to no one deny or delay right or justice  Rule of law core meaning: law is superior to the king, king is the expression of the lawmaker, but is subjected to the law  For some writers, sections 39 and 40 are the seeds of the rule of law – indeed they referred to Magna Charta calling it the glorious document. o Writ of habeas corpus: we have to look at the Bushell’s case of 1670 (so it isn’t medieval time, but ius commune period), in which Vaughan CJ asserted “The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he has been against law deprived of it.”  The writ of habeas corpus was to sue the court when a person was imprisoned on the bases of an unfair reason  The original fact concerned a controversy where the jury was strongly influenced by the judge, so the jury was forced to a specific behaviour (judge identifies the rule to apply and the jury has to determine if the person is guilty or not) – indeed, the two prayers are arrested because of their unallowed behaviour  The case is important not because of the case by itself, but because it evidences the importance of the writs of the habeas corpus as a safeguard  Rule of law has medieval origins: the protection of the rule of law is connected with the idea of the law of the land, that is superior to the king himself. This means that rule of law, since the medieval period, is connected with the idea of law as a case law. The protection is achieved mainly with the case law. For this reason, the idea of rule of law, similar in every civilized nation, is different in the English system, because while the aim of rule of law is always the same (what Aristotle said) o In our system the sources of law guarantee the freedom of people: our constitution is a result of a particular legislation, the source of this sources of law, Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  that in fact is the Parliament. The state itself is the maker of the law which protect people. The state itself limits in order to protect freedom and rights of the people: the parliament limits the state. o In the English states is different, because parliamentary sovereignty is the idea of law as an extra-statual law. The origin of the law is that it preexists to the state itself, the origin is outside the state. Here an external law is applied to the state and to the people, the common law. This law of the land is discovered by high professionals, the judges, from the cases: the activity of the judges Is to discover the law, and Blackstone, the commentary of Law in England, wrote that judges are oracles of the law (they don’t simply apply, they discover the customs of the land, they declare the law). As a result, 2 stones on the bases of which the law develops, that are the sovereignty of the parliament, and on the other hand the common law  Some authors said that the idea of Blackstone is a fiction: nevertheless, this image is very important because it influences the modern idea of the rule of law - XIX century version of the Rule of Law: Dicey’s An introduction to the study of the law of Constitution (1885)  3 distinct elements of the rule of law: o Absence of the arbitrary power on the part of the State : nobody can be sent to prison without a due process of law, without a provision of law or a legal justification o Equality before the law: everyone is equal before the law, because the idea of law in England is not limited to legislation, is also related to case law and common law, so is outside the State and public authorities are subjected to the same law of citizens, submitted to the same jurisdiction (no difference between administrative and ordinary judges) o Supremacy of ordinary law: English has a Constitution, not written but kept in the principle of common law 8. Rule of law and the Human Rights Act 1998 - Rule of law was influenced by the enactment of the Human Rights Acts  The balance of rule of law is grounded on 2 main pillars: o Parliamentary Sovereignty o Common Law (case law)  They are autonomous, in the sense that they refer to autonomous sources of law, but there’s a relationship between the acts of the Parliament and the judgments of the courts, they are linked through the rules of the statutory interpretation (investigate them is a key point to determine the power of the Parliament and the power of judges)  If the acts of the Parliament need to be interpreted by the judges according to a bare literal meaning of the text, the relationship between Parliament and case is draw according to a precise way: judges are free to adequate the literal meaning of the acts of the Parliament to the concrete case – power of free interpretation  In the history of law the codification according to the idea of positive law narrowed the power of the judge to a bare applicator of the law, cannot interpret legislation, cannot use analogy to apply legislation, he can only read and apply the exact literal text of the court – this approach was based Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  on the idea to limit the power of the judge with regard to the interpretation of legislation - superiority of legislation over interpretation  On the contrary, if I say that the judge is able to adequate legislation to the common principles of the system, to vary the literal terms of legislation in order to conform it to some values of the system, I attribute a wide power to the judges to enlarge or narrow the ambit of application of legislation  In our system (but also French one), in the art. 12 of the preliminary rules of the civil code, the rules of interpretation (how judges have to interpret codification) are established and it is fundamental to highlight, in the law in action, what’s the power of the court to interpret legislation  Traditionally, the rules of statutory interpretation in the English system are not established by legislation, it is not the Parliament that establish the rules of interpretation – they are based on the usus fori, so there are practice rules established by judges themselves, the sources of these rules are embodied in the common law, in the judgments of courts  3 main rules of interpretation (UK system): o Literal rule: the judge has to interpret legislation according to the literal meaning of the text – this approach narrows the power of the judge, because the boundaries of the power of the judge are fixed by the Parliament with the text o Golden rule: this rule of interpretation can be applied only if the judge has previously applied the literal rule, and on the basis of it the text of the statute is still doubtful (ex. the same expression corresponds to two possible literal meaning) – so in order to decide what’s the meaning of the text, the judge can recur to the golden rule, a logic rule of interpretation according to which the judge has to avoid the absolute of the meaning (so, between 2 or 3 meaning the judge has to select the meaning that is compatible with the logic sense of the text) o Mischief rule: this rule is very important because it gives evidence of the relationship between Parliament and Common law: traditionally the statutory law has been recognised in the English system as a sort of addenda et errata to common law - the law of England is mainly constituted by common law and the statute law has the function to correct a mistake or fill a gap of the common law (indeed, in the past there were many circumstances covered by common law and few rules of statute law, but today it is different, Parliament has covered most of the ambit of private and criminal law), so if we imagine the common law as a sea, in the past we would have find only some spots of statute law, now statute law is huge and wide and covers most of the England law – nevertheless the mindset of lawyers conserves the matrix of the ancient common law, the way the lawyers look at statute law is like an addenda et errata to common law, the idea according to which a statutory law is interpreted is the following:  Statute law usually is enacted to correct or develop or fill a gap of the common law, so we need to interpret the statute law attributing to the legislation the precise meaning to correct common law  Example: English system had not a rule about the contract in favour of third parties up to 1999, when it was enacted a legislation called “Contracts (Rights of Third Parties) Act” which introduced it for the first time – some sections of the legislation were doubtful, the interpretation was not clear, so in order to Document shared on https://www.docsity.com/it/comparative-legal-systems-prof-vagni-unimc-2019-2020/5172890/ Downloaded by: ceciliagentili ([email protected])  interpret the sections the judges referred to the idea of privity contract, a principle based on case law that affirm that contracts cannot imply obligation or benefit for the third party -. so, as this legislation was enacted in order to modify this rule of the common, judges tried to attribute to the sections those meanings which correspond to the ratio of the legislation (correct, modify the principle of privity of contract)  So, the mischief rule looks at the ratio of legislation, the need, the use of the legislation with regard to common law  These 3 criteria of interpretation cannot be used all together by the judge in the English system, he can only use the golden rule when he has yet used the literal rule with no success and same for the third criteria (sort of hierarchy of the criteria of interpretation) - instead, in our system the art. 12 of the preliminary rules of the civil code claims make a sort of index of the criteria that the judge has to use to interpret legislation, but according to our jurisprudence they can be used all together by the judge in approaching legislation o Traditionally, they are used so strictly as to narrow the ambit of application of legislation – it is not a case that in 1976 the Parliament was forced to enact the Interpretation Act, in which there are sections that explain that when you find a name in masculine in a provision, you need to intend this name as addressed also to feminine gender, or if you find an index in a legislation you need intend it as a set of examples and not as an exhaustive index in legislation  So, judges were forced to establish some self-evident rules in order to prevent judges from limiting the value of legislation through interpretation  According to these rules of interpretation established by judges themselves, the judge has to have an high respect of parliamentary sovereignty, so he cannot attribute to legislation a different meaning from the literal word used by the parliament, and he cannot enlarge the application of the legislation hiding the meaning of the text (only when the text is not clear, the judge can pass to the other criteria, these options are occasional) – so, according to these criteria there’s a well-established relationship between PS and CL - Human Rights Act was an earthquake on the landscape of the English jurisdict