Sheets 3 Legislation.pdf

3 Legislation Introduction to Law, UCU Fall 2024 René Brouwer Today 1 Looking back at the last session: identifying the characteristics of the civil law tradition in Justinian’s Institutes and Grotius’ Inleiding, and of the common law tradition in Blackstone’s Commentaries. Que...

3 Legislation Introduction to Law, UCU Fall 2024 René Brouwer Today 1 Looking back at the last session: identifying the characteristics of the civil law tradition in Justinian’s Institutes and Grotius’ Inleiding, and of the common law tradition in Blackstone’s Commentaries. Questions? 2 Origin of legislation in English (not of the United Kingdom as a whole!) law 3 Legislative power in the UK (= England, Wales, Scotland, Northern Ireland) 4 Legislative process 5 Statutory interpretation: A in English law; B in Dutch law (as an example of interpretation in the civil law tradition) 1 Origin of legislation in English law Last time: English law is at first foremost based on case law < found by the judges in deciding cases in the common law courts but with the rising importance of King and Parliament legislation (statutes, ‘laws’) has nowadays become more important Rising importance implied a (long) struggle between King and Parliament about whom should have the power to make laws Struggle between King and Parliament about who is entitled to make laws (statutes) Four phases in this struggle 1. Magna Carta (1215) 2. War of the Roses 3. Civil War 4. Glorious Revolution (1687)  Phase 1: Magna Carta (1215) King acknowledges the liberties (rights?) of the lower nobility (‘Barons’), who had assembled in ‘Parliament’ Phase 2: War of the Roses (1455-1487) After the Norman kings, English throne is object of dispute between the Houses of Lancaster (symbol: red rose) and York (white rose) Outcome: Henry VII becomes the first ‘Tudor’ king (unified Tudor rose: red and white) origin of the doctrine of Parliament as ‘the supreme law-making body’ Phase 3: English Civil War (1642-1651) Struggle becomes a civil war, in which the Stuart king Charles I (1600-1649) is decapitated on the orders of Parliament (image above), which is led by Oliver Cromwell (image below) The Civil War ends with the monarchy restored in 1651: absolutist rule of the Stuart dynasty Phase 4: Glorious Revolution (1687) King acknowledges Parliament as the supreme law-making body William III of Orange ad mare Stadholder of Holland and Zeeland 1672-1702 sailing out from Hellevoetsluis (compare William the Conqueror in 1066), with Rotterdam (Laurens church on the left) in the background William III (1650-1702) becomes King of England 1689-1702 Why William? < father is Stadholder William II (1626- 50), his mother is Mary Stuart, daughter of the English king No children, so in England the House of Hannover (or of Windsor, as its members call themselves since the outbreak of WWI in 1914) takes over in the Dutch Republic the Frisian branch of the Orange- Nassau family takes over the position of Stadholder, only to be elevated to Kingship at the mercy of the Great Powers at the Congress of Vienna of 1815, after Napoleon had been defeated Glorious Revolution King recognizes Parliament as the ‘supreme law making body’ in the Bill of Rights (1689) > England becomes a constitutional monarchy: power of the king restricted by a constitution > also: Parliament can set aside the common law, i.e. the customs of the people of England found by the judges in the common law courts > doctrine of the trias politica Montesquieu’s characterisation of the English constitution, in his De l’esprit des lois, book 11, chapter 6: separation of three state powers: legislative power, making the rules, executive power, acting upon the rules, judiciary power, overseeing the correct application of the rules Why? safegarding the liberties of the citizens against absolute monarch (Louis XIV in Montesquieu’s France) Problem with the trias politica in England (until 2009) Until 2009: Problem with regard to the House of Lords (HoL), since part of both legislative and judiciary power After 2009: judiciary task of the HoL has been taken over by the Supreme Court of the United Kingdom (SCUK); HoL now only part of the legislative power 2 Legislative power in the UK (that is England, Wales, Scotland, Northern Ireland) Composition: Two houses: House of Commons (HoC) and House of Lords (HoL) HoC (democratically chosen): 646 members, representing 646 constituencies; each member is chosen on the basis of a relative majority) HoL (traditionally: nobility; now most appointed by government): Peers of the Realm: Lords Spiritual (Church of England, 26) Lords Temporal: Hereditary peers (lost their hereditary rights in 1999, these peers will literally die out) Life peers (about 600), appointed by the government 3 Legislative process See SK, ch. 2.2.1: here you need to become familiar with the different phases of the legislative process, of the coming-into-being of a statute: Bill: proposal First reading: formal Second reading: debate on principle; with vote Committee stage: debate on detail Committee report: standing committee reports to the HoC Third reading: debate on detail discussion and approval in the HoL (can be bypassed, see Jackson case, to be discussed on Friday) approval HoC Royal assent: King signs the Bill Implementation: Act of Parliament 4 Statutory interpretation What if a dispute between parties resolves about the interpretation of (a phrase in the) statute? Which are the established methods of interpretation? In English law: standard method of interpretation is the literal approach [NOT: liberal approach]: meaning is determined on the basis of grammar and dictionary < historical background: while accepting the power of Parliament the Courts consider Parliament as interfering with their business of making the common law explicit and are thus inclined to restrict the scope of legislation BUT NOW: sometimes purposive (teleological) interpretation allowed, see Pepper v. Hart (SK, pp. 39-40) A English law In English law three rules of interpretation: 1) The literal rule: the judge ought to interpret literally 2) The golden rule: if application of the literal rule brings absurd result, then another or wider meaning can be given (Pepper v. Hart) 3) The mischief rule: unclarity in statute can be resolved by going back to the intention of the law giver in redressing a mischief in the common law B In the civil law tradition: Dutch law Interpretation of statute in the civil law tradition is liberal Explanation: main source of law are codes - as a systematic set of rules in abstract language > these general and abstract rules sometimes need to be interpreted in order to be applied properly to the facts see esp. Paul Scholten (1875-1946), author of the General Part (Du.: Algemeen Deel); for English translation see www.paulscholten.eu Methods of interpretation according to Scholten 1. Grammatical interpretation (§10) 2. Historical interpretation of statute (§11) 3. Systematic interpretation (§12) 4. Historical interpretation of the tradition (§18) 5. Sociological and teleological interpretation (§25) 6. ‘Conscience of the law’ (§27) Ad 2 Historical interpretation: What was – historically speaking – the intention of the lawgiver? (§11) > look into the Parliamentary discussions of the proposed statute (esp. ‘Memorie van Toelichting’, ‘Handelingen’) N.B. History of the law (‘het recht’), a.k.a. ‘tradition’, that is the law before the coming into being of the statute, can be relevant, too (§18) Ad 3 Systematic interpretation: Investigation into the meaning of a particular part of a statute by looking at the place of a word in the sentence, the rule within the relevant part of the statute, within the statute as a whole, or within the legal order as such (§12) Ad 5 Sociological-teleological interpretation: ‘the requirement of social and economic life’ (Du.: ‘verkeerseis’) i.e. the judge investigates a social practice and draws its rule from it (‘sociological’), and does so because the practice can only efficiently function when it is in accordance with this rule (‘teleological’ < Greek: telos = goal) Ad 6 Conscience of the law: ‘The active awareness in every human being of what law is and ought to be’ with the help of conscience the judge can finally make or ‘jump’ to the decision Result of interpretation in the civil law tradition: persuasive precedent In Dutch law (or for any other system in the civil law tradition) the judge explains (a phrase in) the statute with the help of one of the methods. The explanation is often used by judges in similar cases. Thus: in the civil law tradition case law (‘jurisprudentie’) has become another source of law, next to statute. This precedent is ‘persuasive’ rather than ‘binding’ (as in English law, see next week): in the civil law tradition earlier judgments may be followed, in the common law tradition earlier judgments must be followed. For the Friday session On Friday you will be able to see how various aspects of the theory work out in the practice of dispute resolution in English law. You will read in small groups part of a judgment, which we thereafter will discuss together. The relevant part of the judgment is in the readings on Blackboard, the main - from now on standard - questions (aspects) under which the case will have to be analysed are: 1) who are the parties? 2) how was the case decided in earlier instance(s)? (N.B. Here you need to give outcomes only, not reasonings) 3) what are the facts? 4) what is the legal question? 5) what is the answer to the legal question? 6) what is the relevance of the case for the development of English law?