Partie 1 : Cours d'anglais juridique : Legal professions in the common law countries, county courts
Partie 1 : Cours d'anglais juridique : Legal professions in the common law countries, county courts...
Foreword
There is an undeniable close relation between law and language. Every English-speaking country is a common law country, and all the Latin countries have a romano-civilist system.
NB: The roman-Dutch law is the law applicable in and countries in this area such as . Afrikaans still have access to the old roman-Dutch law texts. Grotius (De jure ad pacis, Jus gentium) in the event of a vacuum legis, would use Roman law principles to mend the lacks in customary international law. Dutch lawyers between the 15th and 17th century, established international law based on Roman law pples. Indeed, the United Provinces being a paramount actor in the international trade, needed maritime law as well as law of trade.
Introduction:
English law is the law applicable to and per se. There is a difference between England Great Britain and the . isn’t a country; it is the United Kingdom of Great Britain and Northern Ireland.
Chronology:
Ÿ 1066: the Norman Conquest
Ÿ 1536: annexation of
Ÿ 1707:
Ÿ 1921: Emergence on the International scene of the
Common law, Equity and statute law form the law of the . Common law if the foundation, keystone of English law, its core and skeleton.
English law didn’t start with the Norman Conquest: the Norman Duke, who was a christianised Viking, was vassal to the King of France. After the defeat of the battle of
William the Conqueror, not speaking the Anglo-Saxon language and eager to pacify the territory, accepted the Anglo-Saxon law as it was; he decided not to change anything in order not to antagonise the subjects. All the courts remained, but there was an evolution of three or five centuries that brought common law to life: it as to become the law common to the kingdom (instead of the different laws, such as Mercian law, Dane law and mank 3è loi.
The First common law was administrated in French « la communa ley ». (NB common law different from ordinary law « droit commun ») Eventually, the King assumes the administration of justice through his judges. Emergence of common law courts at
Local courts were never abolished, they wailed, declined, their jurisdiction decreased as the King’s jurisdiction waxed. There was concurrent (or clashes of) jurisdiction. After four or five centuries, the King’s courts, royal courts, took the ascendancy over local courts.
Jurisdiction:
Ÿ Juridiction au sens français (rarissime)
Ÿ Compétence
Ÿ Système de droit
Conflict of law (DIp) International law (DIP)
Common law:
Ÿ English law
Ÿ System of law in the whole English-speaking countries (as opposed to civil law countries)
Civil law:
Ÿ Private law (inside the English law
Ÿ Law applicable to Latin countries
The British colonists exported the Common law system. I.e. Common law is one of the main legal systems. But in some jurisdictions, you have a dual system:
Ÿ : Scottish and British law
Ÿ and : Roman Dutch law and Common law
Ÿ , ,
If in all of those jurisdictions, you find a dual system, imposes its procedure wherever it conquers a territory. Adjective law is a question of public interest, public policy. It can respect the local law, but adjective law is always British procedure. Adjective law is paramount in common law.
Meanings, acceptations of « Common law »:
Ÿ English law generally
Ÿ Different from civil law in Latin countries
Ÿ Different from Equity and statute law inside the English law
Ÿ The law which originated in the Royal courts sitting at
Ÿ Positive law, good law, law applicable, law as in the books.
Courts of Common law
From the original institution of the King’s Council (Curia Regis), we shall see the emergence of two public institutions: Parliament and Royal Courts. Over 3 and 5 centuries, both will be completely separated from the Council. The King, at all time, retained a residual power, derived from his prerogative power. He could exert executive orders with or without control of Parliament or Courts: Prerogative of the Crown.
Three Courts of Common law:
Ÿ Court of the Exchequer: Name come from the chessboard, Will the Conqueror used to balance his budget on a chessboard using the white and black squares, hence the connotation with finances. It is the first court to split off from the Council, during the reign of Henry II. Originally, it dealt with disputes between subjects and the Crow over revenue. Later on, it acquired jurisdiction over disputes between subjects over writs of debt and covenant (A writ being the way to start an action in common law) It was abolished in 1873-1875 (Judicature Acts), its common law jurisdiction were transferred to the Queen’s Bench Division of the High Court and its revenue jurisdiction was transferred to the Chancery Division of the High Court.
Ÿ Court of Common Pleas: (trad: plaids communs, ajdh, arraignment/ In Canada, New Brunswick, Manitoba, there are courts called Cour du Banc de la reine) It dealt with pure private disputes between subject in which the King wasn’t involved. It’s jurisdiction was transferred to the QBD in 1875
Ÿ Court of the King’s Bench: Last of the three to break away from the Council. Closely associated with the Crown. By the Reign of Edward I, the Court acted independently from the King. James I attempted to sit in the Court. Ha was defeated by Sir Edward Coke, Chief Justice of the King’s Bench in 1608. It is the beginning of the emergence of democracy and the distinction of the three branches of government.
This concluded the creation of the here branches of government, starting from then, the King couldn’t enter a court of law; it was taboo, i.e. secret and sacred. This was very important because the court had the power of issuing the prerogative writs that are supposed to be royal orders.
There are three prerogative writs; it is though these writs that British administration developed:
Ÿ The writ of mandamus (that ask the subjects to do something)
Ÿ The writ of certiorari (certifies)
Ÿ The writ of prohibition
It is the superior courts, those who benefit from these prerogative powers, that create case law, common law. These writs help administrative law to develop all over the Common law world. In opposition to what is usually said in civil countries, administrative law is very developed in the common law system. The difference is that common law doesn’t differentiate administrative courts and private law courts. These writs restrained the abuses of inferior courts and public officials. Cass law, as a result of these writs created the judicial review (or judicial review of administrative actions), or ultra vires to control the officials. If all common law countries know of the administrative judicial review, the constitutional judicial review is only known, obviously, in countries where the constitution is sovereign, such as the US, Canada of Australia (the US constitution has influenced the two others, as they all are common law countries with a federal administrative organisation). The constitutional judicial review is the capacity of the constitution to challenge the law. Not all the courts have this power, only the superior courts. The constitutional judicial review I also a way to create a balance between the federal state and the federated states. (NB: Canada included a Charter of rights in its constitution in 1982).
The Court of the King’s Bench could also issue writs of habeas corpus. When someone was detained, he could ask a friend to get a writ of habeas corpus if he deemed himself wrongfully detained. The court would sit and listen to the detainor’s view of the story. If the detainor didn’t show up, he was hold in contempt of court and the detainee would be released.
The
The Common law writs are the only way to start a case at common law: A person would by a writ at the adversary county of residence, from the registry of writs. The writ would be served to the opponent by the sheriff. If he came to court at the specified time and place, they would transform themselves into claimant (or plaintiff) and defendant and the trial would start. A course of action would only exist if the facts fell exactly into the scope of the writ. The system didn’t work very well and it was very difficult to approach (or seize) a court. They were obsessed by procedure.
Many litigants were disqualified. The body of law was replaced by Equity: the Chancellor decided to replace the courts and to hear the disqualified persons. The Chancellor, most senior minister became a judge and by 1474, the Court of Equity was created. The Chancellor was a cleric who had read canon law (common law was only taught from the 19th century, before, it was considered a professional matter. It developed a body of law, derived from Equity to avoid the rigidity of the law with a fiction, he tried to extend the scope of the writ. Today, in all common law countries, the King’s Bench is represented by the superior court that can issue writs. The Court of Chancery developed as the Court of Equity, it developed a full-fledged court, parallel to the common law courts that modernized. The Vice chancellor replaced the Chancellor at the head of the Court. The Court was abolished in 1873-1875, and replace by the Chancery division of the High Court.
NB: At common law, the appeal, created in the in the 19th century, in almost never as of right, although one can always lodge an appeal.
Compared to those in , judges in the Common law have legitimacy; independence of the judicial is paramount in the common law system. They are over-protected, and excessively well paid.
In the , law pples are excessively close to the British ones, e.g. Certification is the American version of certiorari. The only case where the US SC acts as a court of first instance is when two states differ. The Judicial committee of the Privy Seal is the most superior court for the
Statute law, legislation:
It is the third major source of English law. Today, the ppal agency of law reform. There is a tendency towards codification. But the civil law countries have a different vision of codification, there is an idea of modernization. All the rules relating to the composition and jurisdiction of modern courts and procedure are statutory. Most pples have their origins in common law and Equity, details are in statutes. Adjective law differs from country to country. Originally, legislation couldn’t be distinguished from common law as they both originated from the same institution, the Curia Regis (up until the 13th century). By the 15th century, statute had absolute royal authority. In case of a conflict between statute law and common law, statute will prevail, as it comes from the Parliament who is sovereign. As an example, nowadays, judges are reluctant to define new offences as they used to, because the criminal law is the matter of the sovereign Parliament.
Sir Edward Coke in the 17th century said « Parliament legislative power is so transcendent and absolute as it cannot be confined either for causes or persons by any bounds. » i.e. e. Parliament is sovereign. No act of law can be challenged in court in the as opposed to what happens in the federal states where not a single organ can hold all powers. As opposed to , and , in , and the House of Commons, House of Representatives and the Knesset are sovereign. They are all unitary types of States. The British system of separation of powers is called the
According to the Bonham’s case, in 1610, courts can discuss the validity of Statute law. Eventually, this possibility was subsided by the pple of the sovereignty of Parliament. The constitutional judicial review doesn’t exist in the , only the judicial review of administrative actions, Plmt is sovereign. After the disaster of the Apartheid, checked out what models existed in democratic countries, and decided to establish a Constitution that would be interpreted by a
Judges in the can refuse to apply a law in three cases:
Ÿ British Parliament cannot bind itself or its successors
Ÿ The European Community Act of 1972: incorporation o the Treaty of Rome in the English legal order
Ÿ 1998 Human Rights Act: incorporation of the European Convention on Human Rights that came into force in 2000
These pples, incorporated, are enforced by the British Courts European legislation is made supreme by an act of Parliament.
Legal professions in the common law countries:
If there is only one legal profession, there are 2 branches in the
Ÿ They are identified by reference to a record or register. Their names have to be on the list
Ÿ They must be recognised as having a special skill or learning, it is a formality in order to protect the public from gross incompetence. The standards are prescribed by the profession itself
Ÿ They must accept to serve the public
Ÿ They must subject themselves to an ethical conduct (: etiquette deontology)
Ÿ They are responsible of their actions
It has a central organisation with a governing body with powers of control and discipline
Their primary function is to give advise and to give service to the client (I.e. to argue a case in court, to take a case, to go to court, to defend a client) (pleadings: pièces de procédure) The admission to this profession is restricted to those with required training, it is self-regulated (CPS)
The law school in is the Bar, 4 Inns of Court in : the
Magistrates are very conviction minded the basic training for magistrates is experience, they are pragmatists. JP’s are very important institutions in the Common law system. Above the Circuit Bench, you have the Justices, superior judges. Judges, at Common law, are Servants of the Crown, not Civil Servants, that is to say they don’t benefit from any kind of promotion, except for very particular cases, e.g.; Justice Robert who was judge in the District court of DC, then associate justice and finally, Chief Justice in the US SC. Furthermore, their salary cannot be amputated as it comes from a consolidated fund (as opposed to the budget). Judges at common law are ferociously jealous of their independence and freedom. After Apartheid, judges remained because they are independent; they applied the Apartheid legislation reluctantly).
County Courts:
High Court, reorganised by the 1873-1875 acts have unlimited jurisdiction, it is not specialised. The County Courts were created to ease the task of the High Court, to discharge it from its load. Created by the
The County Courts jurisdiction in statutory and are divided into districts, there is one county court per district (and not per county). Their jurisdiction is the entire range of civil proceedings. It may be exclusive or concurrent but there is a maximum monetary limit and a question of legal importance.
Ÿ Contract and tort (obligations)
Ÿ Action in respect of land
Ÿ Equity proceedings
Ÿ Foreclosure, redemption of mortgage
Ÿ Admiralty proceedings, maritime law (d. Commercial)
Ÿ Probate proceedings (certification of wills)
Ÿ Jurisdiction by agreement
Ÿ Other proceedings (hire purchase, rent acts, consumer credits, landlord and tenants, housing and sex discrimination)
Ÿ Some specific county courts have jurisdiction in bankruptcy matters and race relations