Download
1 / 34
340 likes | 409 Views
Sources of English Law. The United Kingdom. The United Kingdom means Great Britain and Northern Ireland; Great Britain means England, Scotland and Wales A constitutional monarchy The United Kingdom is a unitary state , but it does not have a single body of law
E N D
The United Kingdom • The United Kingdom means Great Britain and Northern Ireland; Great Britain means England, Scotland and Wales • A constitutional monarchy • The United Kingdom is a unitary state, but it does not have a single body of law • England, Scotland, Wales and Northern Ireland have their own legal systems and courts • English law means the legal system of England and Wales
Branches of government • The executive: Government • The legislative: Parliament as the highest legislative body in the UK • The judiciary: hierarchy of courts
Common law – opće pravo, precedentno pravo, common law, anglosaksonsko pravo • Statute law – kodificirano pravo (pisano pravo) • Equity – pravičnost; rules of equity – pravila pravičnosti • EU law – europsko pravo, pravo Europske unije
Who makes the law? • Parliament (statute law) • Courts (common law, equity) • The European Union (EU law) • The Council of Europe (The European Convention of Human Rights)
Hierarchy • EU Law – law that emanates from the Institutions of the EU (Brexit?) • Statute law – made by Parliament • Common Law (customary law, judge-made law, case law) – made by the decisions of the judges • Equity – created by the Chancery court under the Lord Chancellor to ‘fill in the gaps’ in the common law
EU Law • The EU was established in 1951 by the creation of the European Coal and Steel Community (ESCS) • The UK joined the EU on January 1, 1973 • EU legislation has primary legislation (treaties) and secondary legislation (regulations, directives, decisions and recommendations) • EU Law can overrule national law • After withdrawal from the EU following the referendum in 2016 (Brexit) it will cease to apply to the UK
The European Convention of Human Rights • The United Kingdom was one of the first signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, which is usually referred to as the European Convention of Human Rights (ECHR). This Convention is a treaty of the Council of Europe. The ECHR was incorporated into English law by the Human Rights Act in 1998. By this Act the English courts must take into account any judgment or advisory opinion of the European Court of Human Rights. The Act requires that courts seek to interpret and apply primary and delegated legislation in a way which is compatible with the Convention Rights.
Statute Law • Passed by Parliament - a statute is drawn up in a definite form of words, and these words have been approved by Parliament and have received the Royal Assent (written law) • When a law (Act of Parliament) is passed, it is added to the statute book • About 60 to 70 Acts are passed each year
Delegated legislation • In addition to Parliament enacting law, legislative power is delegated to government ministers and their departments to make detailed rules and regulations, which supplement Acts of Parliament. • These regulations are delegated legislation and are called statutory instruments. Unlike primary legislation, the validity of delegated, or secondary legislation may be challenged in the courts if the maker has acted beyond the powers (ultra vires) given by the parent Act. • delegated legislation/statutory instruments – sekundarno zakonodavtsvo, podzakonski propisi
Written and unwritten law • Two main categories of law: Written (formally enacted) and unwritten (unenacted) • There is no authoritative text of the Common Law (unwritten law) – law reports
Customs • Customs are social habits or rules of behaviour which develop in a community without being deliberately created - “conventional”rules • Much of the early common law was developed through the application of customs • Reasonable, certain and “ancient” customs – must go back to 1189 • General and local customs
General customs • Following the Norman Conquest in 1066 (as the country was gradually brought under centralised government) the judges who were appointed by the kings to travel around the country based at least some of their decisions on the common customs. • General customs have long since been absorbed into legislation or case law and are no longer a creative source of law.
Local customs • Local customs refer to a situation where a person claims that they are entitled to some local right, such as a right of way or a right to use land in a particular way, because this is what has always happened locally. • An exception to the general law of the land, and only operate in that particular area. Although customs may develop, they are not part of the law until recognised by the courts; it is the judges who decide which customs will be recognised as enforceable at law.
Common Law • Traceable to Anglo-Saxon times and forms the basis of English law • It was formed from the customs of the people • Unwritten law is predominant • More precedents than legislative enactment • Common law (the general law contained in decided cases; unwritten or judge-made law) means ancient customs, precedents and books of authority (writings of jurists)
Why it is called ‘common’ • The first legal system that became common to the whole country (England and Wales) after the Norman Conquest in 1066 • Prior to the Norman Conquest there were many different rules of law found all over the country – customary law • William the Conqueror decided to set up a central system of government that would include the justice system • A strong centralised Government headed by the King and advised by his Council • The King set up the Curia Regis and appointed judges
Curia Regis – the King’s Court • The nobles who had a dispute were encouraged to apply to have the king or his judges decide the matter. • In addition to the central court, the judges were sent to major towns to decide any important cases. Thus judges travelled from London all around the country.
Henry II • Henry II (1154-89) divided up the country into 'circuits' or areas for the judges to visit. Similar cases were decided in similar ways, and decisions of royal judges were held in great esteem by local judges. Lower courts gradually became bound by decisions of higher courts. This had the effect that the law became uniform or 'common' through the whole country, and it is from here that the phrase 'common law' developed.
Rules of equity • Equity means fairness • Equity developed due to defects in common law • In English law equity means that body of rules originally enforced by the Court of Chancery • Rules of equity grew up through the practice of medieval Lord Chancellors as “keepers of the king’s conscience” • Equity filled the gaps in the common law and softened the strict rules of common law
Rise of equity • Initially claimants (dissatisfied parties) petitioned the King as ‘fountain of justice’ • Eventually the King handed the responsibility to the Lord High Chancellor who (in the 15th century) created a specialist court to deal with such matters (the Court of Chancery) • The petitions were usually in the form of allegations that the common law was defective, that common law remedies (usually damages) were unsatisfactory or that the courts lacked jurisdiction to decide certain cases • The Chancellor developed new, alternative legal remedies which were more flexible – equitable remedies (injunctions, specific performance, rescission and rectification) • Equity gradually became more rigid and was fused with common law by the Judicature Act of 1873 (High Court of Jusdtice established to administer both common law and equity – Chancery Division)
Principal sources of English Law • Statute Law: Legislation (enacted law; statutes or Acts passed by Parliament); the doctrine of parliamentary sovereignty • Common Law: Precedent (courts are interpreters of law); a precedent is a previous decision by a superior court on similar facts
Subsidiary sources of English Law • Common law means judicial precedents, but also ancient customs and writing of jurists - books of authority • The subsidiary sources are customs and books of authority • Books of authority are the writings of legal authors which are cited in courts • Some books by prominent authors are as authoritative as precedents e.g. Blackstone’s Commentaries (1765) • Principal sources – glavni izvori • Subsidiary sources – sporedni izvori
Common law v. Roman law • Common law is a native product of Britain • It absorbed only a few rules of Roman law • A unique legal system
Common law remedies • Legal and equitable remedies • Legal remedies: damages awarded by courts • Equitable remedies: equitable remedies are appropriate when an award of damages will not lead to a fair result; • damages - odšteta
Equitable remedies • a court can issue an injunction to order a party to stop doing something (a prohibitory injunction) or to do something (a mandatory injunction). • Other equitable remedies include specific performance, rescission and rectification • Injunction – sudski nalog, sudska zabrana • Specific performance – izvršenje ugovorne obveze po nalogu suda • Rescission – poništenje (koje naloži sud) • Rectification - ispravak
Common Law and Statute Law • Common Law has grown rather then being made • Statutes began with the reissue of Magna Carta in 1225 in the reign of Henry III • A large volume is added every year • Much of the fundamental part of English law is still Common law
Sovereignty of Parliament • Where Statute Law and Common Law come into competition, Statute Law prevails • The sovereignty of Parliament is the dominant characteristics of English political institutions • No court or judge can refuse to enforce an Act of Parliament • No development of Common Law can repeal an Act of Parliament
Advantages of case law • Certainty: the fact that decided cases are binding makes it certain that every future case which is essentially similar will be decided in the same way • The possibility of growth: new rules meet new circumstances • A great wealth of detailed rules: English law is richer than any code of law • Practical character: rules laid down by the cases are in close touch with the needs of everyday life
Disadvantages of case law • Rigidity: once a rule has been decided, it is difficult to depart from it • Lack of logical distinctions: Rules which are logically inconsistent with each other are sometimes developed along distinct lines of cases – conflict • Bulk and complexity – more than 2,000 volumes of law reports make the case law difficult to apply
The British Constitution • Evolved, unwritten and flexible: • It has evolved over many centuries • It is not set out in any single document • It is made up of statute law (Acts of Parliament), common law (court judgments) and conventions • Conventions are rules and practices which are not legally enforceable, but which are regarded as indispensable to the working of government • The constitution can be altered by Act of Parliament, or by general agreement to alter a convention • https://youtu.be/eYuVn12Vv-U
The video exercise • http://www.youtube.com/watch?v=KeKcTe4HRPs Watch the video and answer the following questions: • What are precedents? • What was equity based on? • Which are common law remedies? • What is the ultimate domestic source of law?
