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. Quebec
has a mixed system, common law and civil law. Both law and language are
inextricably tied. During the twelfth century, the change of the
language usually spoken in accompanied by the modification of the body
of law. Also, in 1898, after being conquered by the , switch to a Common law system. Today, they’ve completely forgotten the Spanish. Identically, ,
a former Dutch colony, up to 1917, has switched form a roman-Dutch
system to a common law system. This can be explained by the fact that
changing one’s language is changing one’s way of thinking.
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: Union of and
Ÿ 1921: Emergence on the International scene of the Irish Free State. The island or is partitioned
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 Hastings, the Normans expanded up to .
The Anglo-Saxon language, spoken by the British, disappeared in less
than a century. Old English was halfway between Anglo-Saxon and French.
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 Westminster. Creation of a centralised system of law at Westminster.
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 , , Quebec, Louisiana: French civil code and influence of common law (far more than an influence in the case or Louisiana)
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 Westminster
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 Assizes Court
was sent by the Crown to the prisons, and they would follow a circuit
(hence, circuit courts in GB and US). Eventually, these courts, which at
first only dealt with criminal law, accepted to hear civil cases. They
were abolished in 1971 and replaced by the Crown Courts.
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 Channel Islands and the Isle of Man, British overseas territories and the Commonwealth countries if they recognized its competence. E.g. refused it because it was contrary to their sovereignty whereas NZ still requires it.
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 Westminster
system of Parliament. NB Israel doesn’t have a Constitution because,
according to the Jewish faith, only God can give a Constitution, Though
there is no Constitutional text as one might hear it in France or the
US, UK has a Constitution (Treatise « The British Constitution »)
Mainly, it consists in the rule of law: it is a fuzzy pple (ppe de
légalité) but a useful one. It is a pple that constricts the sovereignty
of Parliament, self-restraint, comparable to the Rechtsstaat. This
source was confirmed by Lord Cook, a Law Lord from NZ, who asserts that
there are some pples that cannot be changed in the common law system.
The question is: Who will control its respect? Between 1948 and 1994,
the Apartheid didn’t respect the rule of law and the South African
Parliament legislated boundlessly.
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 Constitutional Court.
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 British Islands: solicitors and barristers (advocates in )
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 Inner Temple, the Middle Temple, Grey’s Inn and Lincoln’s Inn
(only Equity barristers) They all have the same standard. The Inn of
Court is a Restaurant, a library, a club, a law school, and a place of
work
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 1846 County Court
Act, it never acts as a criminal court. It is an inferior court (i.e.:
doesn’t have the 3 prerogative writs, nor judicial power). It was
created to set up an effective local court for minor cases (cours de
recouvrement des petites créances), recovery of small debts (créance:
credit, claim) (claim: concession minière and revendication)
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