Common Law Notes

Common Law

Common law (CL) is a legal system closely linked to case law.
It originated in England and is now used by over 50% of countries worldwide.
There are 3 perspectives:
- The CL in England

The Common Law in England

The birth of CL is a story of casual circumstances, it is very different from the French legal system in which all legal institutions where organized, thought long before: we first think, we write and we instaure the institutions.
CL developed step by step according to political, economical circumstances.
William, the Duke of Normandy, became king of England in 1066 after winning a battle.
He established royal power, with justice as a key element.

Justice and Power After the Norman Conquest

The goal of the Norman conquest was to establish royal power.
Feudal power was based on personal relationships between the king and vassals.
The kingdom's economic organization was based upon agriculture.
Most people where farmers, few people could read and write and so must rely on others educated people who where usually religious. At that time, specifically catholic people.
The king needed assistants and advisors, including educated and religious people.
Important cases were written down, creating a tradition to collect cases, which after led to Law reports.
Justice belongs to the king, even though others write down decisions.
William I aimed to show his strength by extending the king's judicial power.
This political move aimed to establish a law common to all, strengthening royal power.

Common Law Arrives from France

CL is the mark of this evolution.
The Normans spoke French (law French), creating a language barrier and delayed unification of the language in England.
The formation of royal courts applied a law common to all in the country.
Judges or justices decided disputes in the king's name, as the king couldn't hear all cases.
Local courts and ecclesiastical courts (focused on marriage, divorce, wills) survived but they became less and less relevant over time.
The country was divided into "Shires", resulting conflicts between centralized power and local subdivisions.
The Normans maintained local subdivisions but it was just a way to maintain the population, because they wanted a strong central power.

Impact and Development

The Norman conquest didn't immediately impact English law.
William I directly participated in justice administration, travelling with the king's court (Curia Regis) to settle disputes.
Central courts developed in Westminster:
- Court of Exchequer: disputes about taxation → civil disputes.
- Court of Common Pleas: civil disputes between individuals.
- Court of King’s Bench: most important court that dealt with civil cases and had supervisory power over other courts.

Lord Chancellor and the Writ System

During the 14th century, the Lord Chancellor emerged as an ecclesiastic person.
The writ was a document needed to have a case decided.
Plaintiffs paid a fee to obtain a writ from the chancellery.
The writ secured the defendant's presence.
In 1280, there were only 56 different writs, limiting available remedies.
This system demonstrated limits to the king's power.
Choosing the wrong writ resulted in case failure.
Remedies mainly involved an award of damages.

Equity

In the 14th century, cases without a writ led to the development of equity.
The Chancellor, traditionally a religious person, addressed claims without writs.
Plaintiffs petitioned the king and council for remedies.
Petitions were sent to the Chancellor, demanding remedies where CL didn’t provide them.
The Chancellor commanded defendants to answer complaints.
The Chancellor was known as keeper of the king’s conscience.

Principles of Equity

Equity was grounded on moral and ethical grounds, different from legal considerations.
Equity, in its wide meaning, is that which is fair, just, moral, and ethical.
Equity jurisdiction is justified by principles of justice and consciousness.
Justification wasn't legal but moral and political: Showing that no one can escape the king’s justice.
Equity still exists and is a special kind of legal technique with a huge discretionary power of the court.
Today there are only 3 types of situation to use equity : trust, administration of land.

Continuity and Change

CL maintains itself through centuries, because today there are still writs, court, equity in England.
English history, there is a contrast between the continuity of the CL legal syst from 1066 until now and the tremendous violence of the political life in England
The main issue who led to the civil law was the limitation or not of the royal power.
Is the royal power without any limits, is it absolute, or is there some limits to this power ?
The confrontation was not between the pop and the royal power but with a part of the aristocrats and the king.
A way to limits the king power is to limit his justice.
The Magna Carta introduced principles like individual freedom and protection.

Habeas Corpus and the Bill of Rights

Habeas corpus is a Latin formula which means that you have a body which can’t be touched, tortured without any legal motivation.
This is fundamental because it is the first step towards human rights = idea of a legal protection for people.
The bill of rights (1689).

Roman Influence

Roman influence was not clearly present at the beginning.
The Reformation led to a rediscovery of Roman legal techniques called disputatio.
English law still uses Latin formulas.

Justice and Sovereignty

Justice is an important part of the king’s sovereignty.
The king is supposed to decide himself every legal decision bc he is supposed to know personally the people he govern.
Legal techniques are always grounded on this idea → legal decisions are decided by the king himself.
This general scope was not contested along centuries. Even though the king’s power and authority remained, some of them were killed by the pop Civil war in England

Continuity Explained

This part of violent deaths of kings didn’t impact the fact that legal decisions were always given in their names.
The country was always governed according the idea that there is the crown and institutions which are related to the crown and CL is one of those institutions which are related to the crown. This principle was not until now contested.
This is important bc it showed that CL was a quite good mechanism which is able to survive despite violent events.
Some authors explained such continuity by the presence of Roman law.
From the pov of legal technics and inst, it seems to have had influence on English law but with the disputatio, there is a strong similarity between classical Roman law and CL bc the classical RL was built around legal actions that are very similar to writs and equity.

Introduction of Roman Law

England was not conquered by Romans, so Romans were unable to bring their legal culture.
With the battle of Hastings and the new condition of the Duke of Normandy, RL was introduced in England.
With the Norman, the 1st short experience for English people was possible with religious people who could read and write Latin and law french = canon law.
Canon law in a certain way borrowed its technics from RL.
These churches were only able to decide about specific legal qst concerning the intimate life of people, ex: marriage, last will, children.
Primitive org dev and progressively there was in England a great mvt in favour of the study and use of RL which can explain the success of RL.
Some universities were created where was taught RL.
For some years, RL remained in those uni.

Roman Law and Training Judges

RL was a kind of culture concerning few people but this situation had a great influence for instance in training judges.
As a result, RL solutions were introduced as rules of CL and becoming CL solutions, it is often difficult to distinguish between RL legacy and CL solutions the same arguments having to be discussed.
The Justinian’s Code main source taken in RL is supposed to have been taken by the Roman empire himself.
He wanted to unify laws among his empire.
The Justinian’s code is not really a code, it’s a collection of norms, legal principles and case law which are only representative of the moment in the Roman empire history.
There is also a new consideration about public law, political and admin institutions in England.

Parliament's Role

There was a big controversy between the crown and something called a parliament.
The crown was in favour of the Roman conception of the po centralized power.
On the other hand, people who composed the parliament thought that the power shouldn’t be centralized.
The 14th century bc of that was an important period for CL and for institutions in England.
The Parliament in England began to be a significative relevant institution.
At that time, the parliament was divided in 2 organisations (the chambers):
- House of Commons which existed but now shares its power
- House of Lords was constituted by elective representatives of the counties and borrows.
- They were some member of the nobility (hereditary nobility and religious people).
Until 1399 both of the houses of parliament were used to consider application for review of lower courts decisions but from this date, the house of commons stopped dealing with this matters to focus itself on laws and legislative work.
As a result, the house of lords remained involved in legal affairs → became the court of appeal for every decision.
Step by step borrowing technics and concepts CL began to achieve its definitive shape.

Law Reports

The creation of law reports came to strengthen the CL.
The crown gave instructions of law reporting.
The 1st law reports were called Year books (1275 until 1535).
From 1535 to 1865, a private report followed the year books.
They wrote them for money = commercial activity.
Since 1865 until about 1953, law reports have been published under the control of an institution what is now called the Incorporate Council of Law reporting for England and Wales.
Without reliable decisions, judges wouldn’t be able to judge bc there are no precedents → it brings stability to CL.
=> there is use of written doc for legal affairs and po activities = taken from the RL.

Magna Carta

The principles are quite modern (they began with the Magna Carta which is a written doc).
They contribute to shape CL.
This written doc appeared in 15th June 1215.
This charter shows the crown good spirit for privilege.
This charter was given by the king of England at that time (John the Landless).
This charter had influence in shaping CL not only in influencing the royal power but also from a legal pov.
In 1354 the concept of universal equality before the law was introduced even though the social, po, general frame didn’t change at all → theoretical principle that would be used in vain for many legal qst, ex: to solve the qst of the slavery which could be solved by putting in force the concept of equality before the law.
The principle of universal equality before the law was useful to solve another qst which was the right to obtain a fair trial.

Habeas Corpus

Concept was really used, it means “u have to be conscious that u have a body which can’t be wounded, etc” → idea that your body is protected with the help of institution.
Technically which can be called a procedural remedy → guarantee against any detention of a person when it is forbidden by law.
The writ when obtained didn’t lead systematically to the freedom of the pers, If such detention without any legal decision is allowed by the parliament the Parliament can take any decision it wants → there is no remedy.
Habeas Corpus has practical purposes and guarantee individual liberty.

Monarchy and Power Distribution

The Norman organisation was called a Monarchy which was really strong.
They where some oppositions btw the crown and the Nobility, this led to English revolution and led to the murderer of the king.
He decided a law : The supremacy act, According to this act, all power, even religious power was concentrate in the hand of the king.
The crown is able to keep the power bc it is supposed to have a divine origin.
Those who where officially councils of the crown would be called a Government.
Those who where able to make legislation became step by step a Parliament.
Those who where able to decide cases could constitute Court.
Those abilities are originally the crown powers.
The Bill of rights is just a problem with the situation of the crown : who will be the king of England ?
At that time, there was a negotiation btw the Nobility and the crown, as a result, the crown recognised the legal limitation of the power.
This Monarchy is quite original bc it is not like in Europe an absolute Monarchy, it is a mix with a political democratic regime.
Every legal issue is ruled in the name of the crown but concretely, the rules are made and executed by the Gov, Parliament and Court.

Constitutional Principles

If there is no a unique written constitution in England, there is a lot of document and principle which can be considered as constitutional rules.
Those constitutional principles have relevant consequences upon legal issues, schematically, sovereignty remains in the hand of the crown but with separation of powers and the rule of law.
When you want to be ruled only by law, the sovereignty can’t be the Monarch sovereignty, bc the rule of law means that everybody is under the law even the king.
A. U Dicey is considered the first and most brilliant constitutionalist in England.
First, he pointed out that the English legal syst was built on the doctrine called “the rule of law”.

The Rule of Law

For Dicey, the first most important constitutional principle was the Parliament sovereignty, the second is the rule of law.
For Dicey, the English legal syst founded his doctrine in a way to serve certain ideas and rights which can be understood only with the rule of law, ex : freedom of speech.
Dicey was not the only thinker of the rule of law, two famous authors could be quoted : John Locke and Thomas Paine who where tremendous propagandist for freedom of speech.
John Locke wrote a book, an essay in 1690 concerning human understanding. Inside this essay, he developed the idea that all people possessed certain basic, fundamental rights which is a primitive conception of the human rights.
Thomas Paine is supposed to have used the term “Human rights” for the first time in 1791.
Dicey observed an evolution from the Magna carta, the Glorious revolution, the Bill of rights to unsure that everyone is subject to ordinary rules and even the king but not subject to the crown.

Positivist Approach

Ordinary laws refers at first sight to the work of Parliament : the positivist approach = when law is limited to what is elaborated and passed by Parliament or any other role making authority and Gov.
In this perspective, law is considered from a technical pov.
Even considerate just from the technical pov, the respect due to the law is not limited bc to be accepted, this law should respect certain criteria, to be recognised as good technic to govern, they must be general, open and stable.
To respect such criteria, law ought to protect or to look for specific legal position like equality from people towards law, justice, power.
This positivist approach of the law is also called : formal.
Thinkers who defends such meanings are called formalist, they just consider the technic.

Naturalists

The main opinion which contest the formalist opinion is the opinion of people called : naturalists.
They understand law as something which is granted upon some characters which are deeply good or morally accepted and as a consequence from that foundation, law must be used to serve the needs of the people, not to serve ideas or technics.
In this perspective, the rule of law leads to the protection of certain rights considered as fundamental like freedom.
In this perspective, the rule of law is an other way to talk about human rights, it comes in a way to limit what government can legally do.
It is also called substantive → the substantivist.

Dicey's Analysis

Dicey is considered as the author who have most spread the expression rule of law.
He tries to explain what kind of legal and concrete consequences could be taken from the rule of law.
The first one is the supremacy of the ordinary law which must be respected by everyone.
According to the choice btw the rule of law and the rule of man, legally, the consequences won’t be the same.
Dicey explains that for instance, they can’t be punishment without a clear law.
The second remark of Dicey is that every man, whatever his social condition or economic condition is subject to the ordinary law of the Kingdom.
Everybody might be judge by an ordinary court and with ordinary proceeding.
The third part of the Dircey analysis is to point at the right to individual liberty must be include as a part of the English constitution bc it is secured by a decision of the courts.
This part of the analysis, the legal proceeding, the legal organisation of the court are a pillar of the English institution.

Judicial Interpretation

If the decision of the court must be implemented in the English institutions, there is a problem : the separation of power.
Case law is always present in every part of the English syst.
The first consequence of this formulation is the confirmation of the rule of judicial interpretation and the importance of the judicial review.
The court is sometime able to judge the way the Parliament acted.
There is some debates about what the expression rule of law covers, with Dicey, it is usually considered that the law and the legal syst must be fair, rational, predictable, consistent and impartial.
Many other concepts can be associated with the rule of law like legal equality, good governance, protection for the person.

Three Pillars

With the supremacy of regular law and the concept of individual liberties as a part of the constitution, Dicey described something called the three men Pillars. 1°/ No one is above the law 2°/ Individual rights must be secured by the judiciary. 3°/ An efficient court syst is absolutely necessary to put in force those principles.
The legal aspect of those institutions are particularly important and unusual bc in England the States is not a fundamental element, they need courts but no States.

Acts of Union

The Act of Union (1707) decide that there is a legal union btw the kingdom of England and the kingdom of Scotland in one unique kingdom : the kingdom of Great Britain.
In 1801, another act of union, a law allowing the union btw Great Britain and the kingdom of Ireland, is signed.
From this period, CL didn’t stop spreading ⇒ CL as a legal technic is a desirable way to run justice.

Advantages of Common Law

According all the authors, the first advantage of CL is the case law running upon the precedents.
Because with the case law, people can find a quick and pragmatic answer to their problem.
With the precedents, people can trust without any doubt the solution given by CL, bc more ancient is the answer, more ancient is the solution, so more this solution might be good bc it didn’t change with time.
The procedure is mainly realised in front of a court with oral debates.
This kind of justice is quite cheap regarding the other systems.
It is easy to organise.
The CL is easily accepted and adopted by the new subject of the king of England.
Case law: a series of decisions given by judges but considered as a rule (a precedent) only when this decision where given by higher court, this is how case law survive with time.
The courts can reserved precedent decisions.
There are 3 ways to do so:
*Reversal is used when a party who lost his case decide to appeal to an higher court and this court allows appeal The higher court shows that the precedent is not valuable any more
*A decision is overruled when in a case the facts are similar as a former case
*disapproval, it is a sign which is addressed to higher court This disapproval may help another court to overrule a similar case in the future
*The last way to move a precedent is to use the distinguishing.

Structure of Case Law

It formulates a disapproval, this formulation often appears with obiter dicta, it is a sign which is addressed to higher court.
The FactsRatio decidendi (the law)*Obiter dictum *Dissenting opinion.

Statutory Interpretation

Court and judges can intervene in some question which are not strictly in relation with the case law, ex: it is the case for statutory interpretation.
It is an aspect of a court activity which is about the function of judges in relation to legislation elaborated by houses or legislation who might be applied.
The courts are legally able to interpret those text made by the Parliament.
The courts are helped by rules, presumptions, aids (intrinsic and extrinsic).

Rules of Statutory Interpretation

The literal rule : plain, ordinary, or neutral meaning.
To arrived to the proper meaning of a word it was admitted/decided to may refer to dictionaries .
Example this case law decided whit the literal rule and about a law called race relations act of 1976, the debate was about the meaning of the word ethnic (Mandla c/ Dowell Lee).
The golden rule: a logical meaning must be chosen.
RE Sigsworth (1935)
It was a question of property, precisely the formula to be interpreted was the estate of the dying person without any provisions, Children and grandchildren are direct descendant.
The mischief rule : in order to discover what is bad.
Coakery c/ Carpenter case (1951)
In 1978, intervene a text : The interpretation act.
According the interpretation act of 1978, in order to reach the proper meaning of the word, the judge may refer to the act itself which was made to provide definitions.
The statute must be read as an all, the words used in a statute must not be interpreted out of their context:
*noscitor a sociis,each section of a statute must be read subject to every other section : Expressio unius est exclusis alterios Ejusdem generis

Intrinsic and Extrinsic Aids

The better way to understand the statute and interpret it is to peak up words inside the act itself.
The Statute give itself examples to illustrate the working of the act which facilitate the interpretation.

EU Law Influence

The national court adopt a purposive approach which is foreign to English tradition.
the European community act, UK accepted the supremacy of community law over domestic law and the direct applicability of the community law in certain circumstances.
In 1972, with the European community act, UK accepted the supremacy of community law over domestic law and the direct

Brexit

In January 2020, with the Brexit, UK decided to be separate from the EU.

Equity Principles

Equitable remedies, rules in a way to adopt the law, statute laws maintain its method, concept and curiously. It continues to create new rules especially regarding remedies.
The most significant influence of equity was in the enforcement of the use of land.
Tradionally, the use of land ruled by equity was divided into three situations

Use of Land

Mortgage (equity intervene to protect in case of mortgage a borrower called the mortgagor) Restrictive covenant (promise made by one party called the covenantor for the benefit of another party called the covenantee. The deal contain a deed signed, sealed and delivered by the covenantor)
Trust (equitable obligation binding a pers called Trustee to deal with a property over which he has control on the benefit of a person. CL property has its roots in the feudal world : the only person called the king) The trust is a unilateral legal act recognized by equity

Origins of Trust

The beggar monks The moment of the Crusades (the good way) Some decisions of cases decided at the 13th shows that they were never beggars. The settler: transfers assets on a third party, each of this interest can be called “property”.
Upon the same piece of land, numerous persons have rights and obligations. There can only have : the interest.

Types of Trust

The settlers and a beneficiary Express trust Constituted by the will of the settlor implied trust Not a way to constitute the trust in a normal way. the settlor is alive the assets goes to the beneficiary. Inter vivos decided by a court.

Financial Matters

Bankruptcy matters :In this field, there is a lot of application of the trust. 3 major type : Voting trust Unite trust the court is able to chose to do so.

International Trade Law & Equity

It become one of the most legal operation used in many fields of protection or business matters. They may be conflict btw CL and equity equity a decision is fair and it’s legal meaning it can mean that opinion it is used to adopted a technic and it’s limited to it’s role called the Chancellor
This decision was respected until 1873 bc at that time, the Parliament vote the Judiciatior Act in a syst where several courts could intervene to decide cases.

Main Rules & The Equity

Exclusive jurisdiction Concurred jurisdictionAncillary jurisdiction
CL Remedies are grated as of right

Damages & Cl Rmedies

General damages Special damages Contemptuous damages Nominal damages Exemplary damages Judges in English law are intolerant of people exploiting and using the law to their unfair advantage, mitigation and remoteness the judges will be sure about quantum and see if damages will be inadequate Equity

Remedies & Injunctions

The remedies must be order according to well defined Equity will ask u is an order to stop what the defendant has to do or will be doing Prohibitory injunctionMandatory injunction Intent pilar injunction Mariver injunction ex parte order Recision is a want to give some remedy

British Syst Organisation

The legal organisation there’s a lot of of different position, the crown are the first legal officer Senior member of the bar of at least 10 years standing are often choose, but non political PM recommendations Cabinet hold office during government. Attorney general Solicitor general Director of public prosecution Home secretary Magistrate:7 years , the registrar:

Court in UK

That what happen in the court in UK : They are some organisation and all are inside the legal organisation that present itself like a pyramid. They are the final, The supreme court. The court of appeal hears some cases. The High court of justice is only and divide some other division.
Some influence were decisive even for UK with the citizen rights, there are legal point to take in account.The court that had more law point, as political view. Criminal law are regulated by states: The prosecutor, if the case is major they are The crown that has the power. Trial.
It the end those process happen in front of those differents courts :*Magistrate , crown ,tribunals
Three Categories Of a Court of Those Three Orders: The cases of a contract: two types of actions:

Contract & Torts

Contract and torts is the main distinction that exist inside the CLThe main qst depend :* on the origin of the duty *it must from the will
*There is two kind of contract : *Formal *Unformal. The general word about some contracts. There is mostly a agreement about two person because it is a FUNDAMENTAL THING (A OR B) B can be in accord ,if B is this can be a legal enforcible. What people does to be a legal contract(4) :
*agreement,conselt,intention,the party capacity
*The rules and the law points about the contracts
*There is two types of term in the contract: Term. They can vary in importance some breaches can not
*Term can be : *expressed and * implied.There is two ways to expressed :*by custom and by stats
*Those expression can be use in another way depending on which the term you are looking for.They has term with not a good intention. And can just said that they don’t want to do this now with you, is not more what term called *CONCEPTION
*If those things don’t do so correctly those expression become Condition and warranties if this end those becomes what is called consideration: The English law of contract is concerned with bargains which are promises. 7 principals where used:
1°/ consideration must be real, sufficient 2°/consideration must not be vague* 3° consideration doesn’t need to be adequate *4°/consideration must be possible of performance5° *not by third people6°/consideration must not be passed7°/consideration must not be illegal *In contract case, the term of must look for * the injured party can choose to declare the contract with no end of force is* and if don’t choose become an contract with force and power to use, some power *If all those word are correctly there are also something not good to find in this kind the .Vitiating term of the contract: the element which lead not complete a good one can lead to no void contract

MISTAKE

There are various situations ,and can differ Legal from ordinary can act if u take in action 3 main things
*Mistake about the nature of this 3 ways/ways . It have power if you use them in a good action.
*It also can be : Common, mutual or unlilac
*
B. Legality some contract are illegal
C. Duress D. Undue influence (it occurs as a result of something wrong who make consent the person don’t use is rights to say what is the good word ) E . Misrepresentation the thing that cause to take that path : three are those misrepresentation to do :1 good 2negligent3 innocence
We has now see what is good and what is not but what do when a contract is finished in the mind of is creator???:The Contract Terminate : 3 Situation is it other part is in accord with the first is good, all keep going, what the act to do to correct what append.

*It can happen in 3 different path ways: 1.the situation, do what is on is duty.2. agreement that is discharged from most parties the parties makes the end the agreement 3. The frustrating: the law for what is bad and not bad, the event, make is difficult to get some information .4 breach of someone. So it must now in good in form to go ,now is not what must to is not bad *it* just change .It depends on power the new power you are doing now to do.