Anglais Juridique L2

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Judicial English

INTRODUCTION TO THE ENGLISH LEGAL SYSTEM ........................................1

CASE LAW 7

STATUTE LAW 23

CHAPTER 1: THE ACTORS IN THE JUDICIAL PROCESS 39

CHAPTER 2: CIVIL PROCEEDINGS 40

CHAPTER 3 : CRIMINAL PROCEEDINGS 40

CHAPTER 4 : JUDICIAL REASONING 40

Introduction to the English legal system

This is a standard course in most English universities.

What is too be understood by English legal system ?

What is a legal system ? What is a legal system ?

By legal system, one means the sources of the law, how the law is made, how it comesBy legal system, one means the sources of the law, how the law is made, how it comes

into existence, but also how it applies, the court system and the personel responsible for into existence, but also how it applies, the court system and the personel responsible for

the authoring and application of the law.the authoring and application of the law.Sources of the law : one may suppose that certain provisions (dispositions) are comingSources of the law : one may suppose that certain provisions (dispositions) are coming

into application because of philosophical considrations. We are not considering thoseinto application because of philosophical considrations. We are not considering those here.here.We may also found that socio-economic circumstances that make rules of law ermege.We may also found that socio-economic circumstances that make rules of law ermege.Here, considering only the institutions which make the law and how the law is madeHere, considering only the institutions which make the law and how the law is made

known, in other words the form the law appears in.known, in other words the form the law appears in.

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A. English : what do we mean by English in the English A. English : what do we mean by English in the English legal system ? legal system ?

Why English rather than British legal system ?Why English rather than British legal system ?Why not “the legal system of Great Britain”, or the “legal system of the UnitedWhy not “the legal system of Great Britain”, or the “legal system of the United

Kingdom”, or “legal system of the British Islands” ?Kingdom”, or “legal system of the British Islands” ?

English legal systm :English legal systm :

Does it mean English as an language (English speaking countries). This would include allDoes it mean English as an language (English speaking countries). This would include all countries where English is spoken predominantely : Canada, USA (that have no officialcountries where English is spoken predominantely : Canada, USA (that have no official

language), Australia, New-Zealand…language), Australia, New-Zealand…This would be far too broad, but also too restrictive.This would be far too broad, but also too restrictive.In Wales there are 2 official languages : English and Welsh. The institution of Wales useIn Wales there are 2 official languages : English and Welsh. The institution of Wales use the 2 languages. Welsh became an official language in 1993 (Welsh language act)the 2 languages. Welsh became an official language in 1993 (Welsh language act)But the English legal systemBut the English legal system

England legal system :England legal system :

There is currently a process by which Wales is acquiring a degree of autonomy.There is currently a process by which Wales is acquiring a degree of autonomy.Until very recently the same legal system was applicable to England and Wales.Until very recently the same legal system was applicable to England and Wales.So the expression would be too narrow.So the expression would be too narrow.But it is relevant when considering other parts of the world (India, South Africa…),But it is relevant when considering other parts of the world (India, South Africa…),

because England had the largest empire of the history of mankind. The English legal because England had the largest empire of the history of mankind. The English legal

system has influenced legal system in many parts of the world. Countries were it had asystem has influenced legal system in many parts of the world. Countries were it had a predominant influence are often referred too as common law countries. predominant influence are often referred too as common law countries.Studying the English legal system, indirectly we learn about those other systems. ButStudying the English legal system, indirectly we learn about those other systems. But

strictly speaking the English legal system refers to the system applicable to England andstrictly speaking the English legal system refers to the system applicable to England and Wales.Wales.This system is an alternative to the system existing in many continental EuropeanThis system is an alternative to the system existing in many continental European

countries, which derived from roman system.countries, which derived from roman system.

British legal system ?British legal system ?

British is English equivalent of “Breton”British is English equivalent of “Breton”Britons is a people which occupied large parts of western.Britons is a people which occupied large parts of western.Britain served to denominate both the people and the place where they livedBritain served to denominate both the people and the place where they livedHowever, in the English language, the word Britons referes only to 2 parts of theHowever, in the English language, the word Britons referes only to 2 parts of the country : England and Wales.country : England and Wales.

Wales was annexed to England in 1284, in a statute (an act of Parliament) of Wales.Wales was annexed to England in 1284, in a statute (an act of Parliament) of Wales.In 1536, Wales was incoporated and England and Wales became a single kingdom.In 1536, Wales was incoporated and England and Wales became a single kingdom.Briton refers only to England and Wales.Briton refers only to England and Wales.

Great-Britain ?Great-Britain ?

Refers to England, Wales and ScotlandRefers to England, Wales and ScotlandHow was is brought together How was is brought together



It happened in 1604, when Queen Elisabeth 1It happened in 1604, when Queen Elisabeth 1stst died, she died without children. She had adied, she died without children. She had a

reputation of having remained a virgin during her whole life (there are doubts but she hadreputation of having remained a virgin during her whole life (there are doubts but she had no children). She was the queen of England and Wales.no children). She was the queen of England and Wales.

By the rules of succession, her successor was the king of Scotland, James 6By the rules of succession, her successor was the king of Scotland, James 6thth of Scotland.of Scotland.

At the time, numerous wars between England and Scotland, which was then tighlyAt the time, numerous wars between England and Scotland, which was then tighly

connected to France. The Scotish legal system has been influenced by the French legalconnected to France. The Scotish legal system has been influenced by the French legal system.system.There was a problem. How to call the new King ? James 6 of England ? No, because heThere was a problem. How to call the new King ? James 6 of England ? No, because he

was the first James for Englandwas the first James for England

James 6James 6thth became james 1 became james 1

stst of England (and remained james 6of England (and remained james 6thth of Scotland)of Scotland)

For a century, both kingdoms remained relatively separated, chiefly united by the factFor a century, both kingdoms remained relatively separated, chiefly united by the fact

that the same person remained the king of both.that the same person remained the king of both.In 1707, the union of Englahd and Wales, and of Scotland was instituted byt theIn 1707, the union of Englahd and Wales, and of Scotland was instituted byt the AACTCT OFOF UU NION NION . Scotland, England and Wales became Great Britain.. Scotland, England and Wales became Great Britain.Despite this union, the 2 territories did not have exactly the same legal system, becauseDespite this union, the 2 territories did not have exactly the same legal system, because

by 1707 the Scotish legal system had strongly developed in its own ways. Its own courts, by 1707 the Scotish legal system had strongly developed in its own ways. Its own courts, its own proceedings.its own proceedings.But the highest court of appeal of England and Wales became the ultimate court of appealBut the highest court of appeal of England and Wales became the ultimate court of appeal

of Scotland. This court was the House of Lords. Moreover, the same Parliament situatedof Scotland. This court was the House of Lords. Moreover, the same Parliament situated

in Westminster created laws for the whole Great Britain. But very often acts of in Westminster created laws for the whole Great Britain. But very often acts of parliaments (statutes) had special provisions for Scotland, and sometimes for Wales. parliaments (statutes) had special provisions for Scotland, and sometimes for Wales.Great Britain has given a new expression, Greater Britain, sometimes used to designateGreat Britain has given a new expression, Greater Britain, sometimes used to designate

the British empirethe British empireUnited kingdom ?United kingdom ?It is not synonymous with Great Britain or Britain ?It is not synonymous with Great Britain or Britain ?After centuries of colonial occupation and one could say oppression, Ireland became partAfter centuries of colonial occupation and one could say oppression, Ireland became part

of the kingdom of Scotland, Wales and England. A new legal name was invented toof the kingdom of Scotland, Wales and England. A new legal name was invented to designate this new entity : the United kingdom. In happened in 1800 with thedesignate this new entity : the United kingdom. In happened in 1800 with the AACTCT OFOF

UU NION NION . Through this act, all parts were constituted in the United Kind in 1801 a flag wa. Through this act, all parts were constituted in the United Kind in 1801 a flag wa created to symbolise this union. This flag is called the Union Jack.created to symbolise this union. This flag is called the Union Jack.The Union Jack :The Union Jack :

-- a red cross on white : the cross of Saint George, the cross of England and Walrea red cross on white : the cross of Saint George, the cross of England and Walre-- a diagonal cross, which white on blue : the cross of Saint Andrew, the patron sainta diagonal cross, which white on blue : the cross of Saint Andrew, the patron saint

of Scotlandof Scotland-- a red on white cross, cross of Saint Patrick, patron saint of Irelanda red on white cross, cross of Saint Patrick, patron saint of Ireland

Since 1800, the United Kingdom has decomposed itself in part.Since 1800, the United Kingdom has decomposed itself in part.In 1922, a part of Ireland (note : Ireland is basically catholic, and England is protestant,In 1922, a part of Ireland (note : Ireland is basically catholic, and England is protestant,

with its own church). Irish citizens were for a long time second class cititzens because of with its own church). Irish citizens were for a long time second class cititzens because of their religion.their religion.In ???? , Ireland became the Irish free state. As such it became a british dominion, part of In ???? , Ireland became the Irish free state. As such it became a british dominion, part of

the Commonwealth.the Commonwealth.But the process of deunification continued when in 1937, in wake ofth second world war,But the process of deunification continued when in 1937, in wake ofth second world war,

Ireland became fully independent, and was rebaptised Eire.Ireland became fully independent, and was rebaptised Eire.In 1948 the Republic of Ireland (no longer a kingdom) ceased to be a member of theIn 1948 the Republic of Ireland (no longer a kingdom) ceased to be a member of the

Commonwealth, also known as the Commonwealth of Nations.Commonwealth, also known as the Commonwealth of Nations.



In recent years, especially under the Government of Tony Blair has continued. It hasIn recent years, especially under the Government of Tony Blair has continued. It has

affected other parts of the UK. This process is calledaffected other parts of the UK. This process is called devolutiondevolution. It began at the end of . It began at the end of XXth century, though which Scotland, northern Ireland and Walres have been givenXXth century, though which Scotland, northern Ireland and Walres have been given

restricted or limited autonomy. This process is very interesting because it is an instancerestricted or limited autonomy. This process is very interesting because it is an instance

of how a country has gone back in history to give back autonomy to parts of the country.of how a country has gone back in history to give back autonomy to parts of the country.

This happened in 1998 with theThis happened in 1998 with the BBELFASTELFAST AGREEMENTAGREEMENT , the, the SSCOTLANDCOTLAND AACTCT and theand the GOVERNMENTGOVERNMENT OFOF WWALESALES AACTCT ..It has resulted in Wales, Scotland having a separate Parliament, a separate executiveIt has resulted in Wales, Scotland having a separate Parliament, a separate executive

system and potentially a separate legal system.system and potentially a separate legal system.So we can say there are 3 legal systems : the legal system of England and Wales (our So we can say there are 3 legal systems : the legal system of England and Wales (our

focus of interst), the Northern Ireland (much parallel than different), the Scotland systemfocus of interst), the Northern Ireland (much parallel than different), the Scotland system

(which we will not study, and which is different)(which we will not study, and which is different)These 3 systems are united in 3 ways :These 3 systems are united in 3 ways :

-- through European Union legislation and case law. Which can in certainthrough European Union legislation and case law. Which can in certain

circumstances can operate directlycircumstances can operate directly-- through the legislation of Westminster, which in certain domains remainsthrough the legislation of Westminster, which in certain domains remains

prevalent for all United kingdom prevalent for all United kingdom-- by the case law of the House of Lords by the case law of the House of LordsCase law : jurisprudence.= the decision of the courts and tribunals. But with a bigCase law : jurisprudence.= the decision of the courts and tribunals. But with a big difference : case law, as opposed to French “jurisprudence”, is law, in fact one of thedifference : case law, as opposed to French “jurisprudence”, is law, in fact one of the

major sources of law.major sources of law.Attention : jurisprudence in English has a different meaning. It means the philosophy of Attention : jurisprudence in English has a different meaning. It means the philosophy of the law.the law.

The British Isles ?The British Isles ?

There are 2 major islands : Ireland and Great Britain. But many other islands.There are 2 major islands : Ireland and Great Britain. But many other islands.British Isles covers all the islands.British Isles covers all the islands.

We have seen that Ireland has partly acuiqred independence.We have seen that Ireland has partly acuiqred independence.But this is also the case of other islands ;But this is also the case of other islands ;

-- the Isle of Man (not part of UK)the Isle of Man (not part of UK)-- the Channel islands (Jersey, Guernesey..) are not part of the UK. They are calledthe Channel islands (Jersey, Guernesey..) are not part of the UK. They are called

crown dependancies. They have separate legislative, executive and judicialcrown dependancies. They have separate legislative, executive and judicial

system. The official unifying factor, is that they have the same crown.system. The official unifying factor, is that they have the same crown.The ulimate appeal of Isle of Man and Channel Islands is a special court, the PrivyThe ulimate appeal of Isle of Man and Channel Islands is a special court, the Privy Council.Council.

British (sense number 2) ?British (sense number 2) ?

The meaning has changed drastically in the course of the 20The meaning has changed drastically in the course of the 20thth

centurycenturyAt once, all citizens (or subjects) of the British empire (Canada, Australia, South Africa,At once, all citizens (or subjects) of the British empire (Canada, Australia, South Africa, India…) were British. This is rather wonderful in a way. An Australian could freely comeIndia…) were British. This is rather wonderful in a way. An Australian could freely come

and live in England (there was a right of abode).and live in England (there was a right of abode).CYKC : Citizen of the United Kingdom and the Colonies, which gave right of abode.CYKC : Citizen of the United Kingdom and the Colonies, which gave right of abode.When the british empire ceased to existe and became the Commonwealth of Nations inWhen the british empire ceased to existe and became the Commonwealth of Nations in

1931, all those different parts became firstly dominions, and after WW II, realms1931, all those different parts became firstly dominions, and after WW II, realms

(“royaume”) or states when the countries in question were republic.(“royaume”) or states when the countries in question were republic.



Until the 1960s, all people in the realms had a right of abode in England.Until the 1960s, all people in the realms had a right of abode in England.In 1971, a terrible thing happened for those people. TheIn 1971, a terrible thing happened for those people. The IMMIGRATIONIMMIGRATION ACTACT OFOF 19711971 ..An act passed in England in violation of European Conventions on Human Rights (whichAn act passed in England in violation of European Conventions on Human Rights (which

UK had not ratified at the time). Under thisUK had not ratified at the time). Under this IIMMIGRATIONMMIGRATION ACTACT 19711971 , it was declared that, it was declared that

former british citizens from the Commonwelath no longer had a right of abode in Unitedformer british citizens from the Commonwelath no longer had a right of abode in United

Kingdom. 1000s of people who wanted to come to UK were deprived of that rightKingdom. 1000s of people who wanted to come to UK were deprived of that right (whtehter you were Australian, Jamaïcan…). This means that those who had been british(whtehter you were Australian, Jamaïcan…). This means that those who had been british

before, ceased to be british. So the term British refers to people from before, ceased to be british. So the term British refers to people fromIn 1968, an Australian would have a passport with Australia written on it, with theIn 1968, an Australian would have a passport with Australia written on it, with the mention British Passport. After 1971, the expression British passport disappeared.mention British Passport. After 1971, the expression British passport disappeared. Nevertheless, Australia, Canada, New Zealand have retained a certain unity with UK, Nevertheless, Australia, Canada, New Zealand have retained a certain unity with UK,

they are constitutional monarchies, but separate constitutional monarchies with the samethey are constitutional monarchies, but separate constitutional monarchies with the same monarch.monarch.

English legal sstems means the legal system of England and Wales, and in a limited wayEnglish legal sstems means the legal system of England and Wales, and in a limited way

the system of Noerthern Ireland and Scotland, and in a more restricted way, the system atthe system of Noerthern Ireland and Scotland, and in a more restricted way, the system at the source of the legal systems of Australia, USA, Canada…the source of the legal systems of Australia, USA, Canada…

B. Legal systemB. Legal system

There is a difficulty. A few years ago, things would have been simpler.There is a difficulty. A few years ago, things would have been simpler.But because of Blair’s Government and the effort to develop democracy, which meansBut because of Blair’s Government and the effort to develop democracy, which means

more work. It means knowing the system existing before Blair, which in parts still goesmore work. It means knowing the system existing before Blair, which in parts still goes

on, and the new system which officially has been intended to promote better democray inon, and the new system which officially has been intended to promote better democray in UK.UK.

Ex : theEx : the Lord Chancellor Lord Chancellor (equivalent of “Garde des Sceaux”).(equivalent of “Garde des Sceaux”).Since 1885, the Lord Chancelor had been at the head of the Department called the “Since 1885, the Lord Chancelor had been at the head of the Department called the “LordLord

Chancelor’s departmentChancelor’s department”, LCD”, LCD12th june 2003 : LCD became the DCA (Department12th june 2003 : LCD became the DCA (Department for Constitutional Affairsfor Constitutional Affairs).).9th may 2007, the DCA became the9th may 2007, the DCA became the Ministry of JusticeMinistry of Justice..This word ministry in the English tradition is something which gives a slight chill. TheThis word ministry in the English tradition is something which gives a slight chill. The word ministry has a scent of Republican, authoritarian regimes.word ministry has a scent of Republican, authoritarian regimes.

The UK is like Australia, New Zealand..; a constitutional monarchy.The UK is like Australia, New Zealand..; a constitutional monarchy.

This means that the crown is at the head, is the ultimate authority for all the institutions of This means that the crown is at the head, is the ultimate authority for all the institutions of the UK.the UK.

What is the Crown ? It is the equivalent of what the French calls “L’Etat”. But the StateWhat is the Crown ? It is the equivalent of what the French calls “L’Etat”. But the State

is also a chilling word (remains of eastern Europe authoritarian regimes).is also a chilling word (remains of eastern Europe authoritarian regimes).The name “Crown” is a thing, which symbolises monarchyThe name “Crown” is a thing, which symbolises monarchyThe monarch is the person who wears the crown (King or Queen)The monarch is the person who wears the crown (King or Queen) Not to be confused with the sovereign, any one who has authority. Not to be confused with the sovereign, any one who has authority.



In a constitutional monarchy, we have a system where “In a constitutional monarchy, we have a system where “the Queen reigns but does notthe Queen reigns but does not

rulerule” (Elle règne, mais ne gouverne pas)” (Elle règne, mais ne gouverne pas)Whatever the monarch has the authority to do, she has to do it on advice of the PrimeWhatever the monarch has the authority to do, she has to do it on advice of the Prime

Minister. The Prime minister is the real authority.Minister. The Prime minister is the real authority.Who rules ? In reality, the Prime Minister and his cabinetWho rules ? In reality, the Prime Minister and his cabinet

Something strange about the term “constitutional monarchy”. This constitutionalSomething strange about the term “constitutional monarchy”. This constitutional monarchy has no Constitution.monarchy has no Constitution.There have been movements to have a Constitution in the European or American way.There have been movements to have a Constitution in the European or American way.There are rules that govern the way the institutions work ,but these rules do not exist as aThere are rules that govern the way the institutions work ,but these rules do not exist as a single document.single document.The Constitution is made up of rules of law which are too be found in ordinary sources of The Constitution is made up of rules of law which are too be found in ordinary sources of

law (statutes, case law and European law, and even traditions).law (statutes, case law and European law, and even traditions).

Ex : theEx : the HHUMANUMAN R R IGHTSIGHTS AACTCT was passed in 1998. It is simply an act of Parliament. It is justwas passed in 1998. It is simply an act of Parliament. It is just

a law among others. The parliament could cancel this act.a law among others. The parliament could cancel this act.

C. The separation of powersC. The separation of powersMontesquieuMontesquieu elaborated a system largely from his observations of the English system inelaborated a system largely from his observations of the English system in

1818thth century. A system where there is a separation of the 3 powers.century. A system where there is a separation of the 3 powers.

But there is no such separation in the English system.But there is no such separation in the English system.The monarch theoretically has legislative, executive and judicial powers which the QueenThe monarch theoretically has legislative, executive and judicial powers which the Queen

exercises on advice of the Prime minister. This means that Prime Minister exercises on advice of the Prime minister. This means that Prime Minister Similarly, the Lord Chancellor has executive powers (member of Cabinet), speaker of theSimilarly, the Lord Chancellor has executive powers (member of Cabinet), speaker of the

house of Lords (legislative) and head of Ministry of Justice (judicial powers)house of Lords (legislative) and head of Ministry of Justice (judicial powers)Under Under Tony BTony Blair lair , the lord Chancellor function has been redefined to become more, the lord Chancellor function has been redefined to become more compatible with the principles of separation of powerscompatible with the principles of separation of powers

UK is also a parliamentary democracy. That’s why isUK is also a parliamentary democracy. That’s why isIt is governed by the parliament sovereignty. Parliament is the supreme law maker.It is governed by the parliament sovereignty. Parliament is the supreme law maker.This principle is incompatible with the idea of a written constitution which would limitThis principle is incompatible with the idea of a written constitution which would limit

the sovereignty of the supreme law maker.the sovereignty of the supreme law maker.ParliamentParliament is also the source of executive power is also the source of executive power Moreover Moreover ParliamentParliament has the ultimate judicial power, because part of the Parliament,has the ultimate judicial power, because part of the Parliament,

because house of Loard is the ultimate court of appeal. because house of Loard is the ultimate court of appeal.

16 october 200716 october 2007

Livre :Livre : introduction au droit anglais et aux institutions britanniquesintroduction au droit anglais et aux institutions britanniques , Frison, Frison (essentiel(essentiel :: dernière édition)dernière édition)

Concept of english law Concept of english law

More that «More that « loiloi » in french.» in french.The English term for “loi” isThe English term for “loi” is statute lawstatute law, or , or statutory lawstatutory law.. This the law made byThis the law made by



Parliament Parliament ..But in all Common Law countries, there is alsoBut in all Common Law countries, there is also case lawcase law (“jurisprudence”). But(“jurisprudence”). But jurisprudence in English is “doctrine”. jurisprudence in English is “doctrine”.Case law is divided in 2 branches:Case law is divided in 2 branches: common lawcommon law in the restrictive sense, andin the restrictive sense, and EquityEquity..Equity is also a feature of Common Law countries. Warning: not to be confused with theEquity is also a feature of Common Law countries. Warning: not to be confused with the

common sense. The legal meaning of Equity is very specific.common sense. The legal meaning of Equity is very specific.The oldest source of law, is common law.The oldest source of law, is common law.Equity and common law developed in the first part of the second millennium. (aroundEquity and common law developed in the first part of the second millennium. (around

1200)1200)Statute law is the second source of law to have developed.Statute law is the second source of law to have developed.

There is now a 4There is now a 4thth source of law : the law of EU, and in matters of common right, alsosource of law : the law of EU, and in matters of common right, also

the ECHR.the ECHR.When there is a conflict between sources, there are rules that enable to resolve theWhen there is a conflict between sources, there are rules that enable to resolve the

conflict. Here, the order is reverse that of history.conflict. Here, the order is reverse that of history.European law prevails over statute law, which prevails over case law. Within case law,European law prevails over statute law, which prevails over case law. Within case law, equity prevails over common law.equity prevails over common law.

Case lawCase law

Frison, chapter 4.Frison, chapter 4.

Introduction Introduction

Case law is lawCase law is law

The fact that case law is law is not recognised only by English courts. It is alsoThe fact that case law is law is not recognised only by English courts. It is also

recognised by some international courts (ex : ECHR).recognised by some international courts (ex : ECHR).A case was brought to ECHR in 1979. It concerned a specific common law action calledA case was brought to ECHR in 1979. It concerned a specific common law action called

contempt of courtcontempt of court. It is. It is in part similar to “outrage à magistrate” but is much broader in part similar to “outrage à magistrate” but is much broader

(it included the fact that newspaper could not comment a case before judgment had been(it included the fact that newspaper could not comment a case before judgment had been

pronounced) pronounced). The Sunday Times commented the way a court was handling a case about. The Sunday Times commented the way a court was handling a case about

drugs which led todrugs which led to deformeddeformed children being born. An action for contempt of court waschildren being born. An action for contempt of court was

started against the newspaper. Sunday Times appealed to ECHR. Question was whether started against the newspaper. Sunday Times appealed to ECHR. Question was whether the court could recognise the action, even if there were no statute law (this was purelythe court could recognise the action, even if there were no statute law (this was purely

case law). ECHR stipulated thatcase law). ECHR stipulated that in the case of the common law countries, case law was toin the case of the common law countries, case law was to

be recognised as part of law as designated in be recognised as part of law as designated in ((CESDH 10, § 2CESDH 10, § 2).).

The origin of expression common lawThe origin of expression common lawFollowing the invasion of England by the NormansFollowing the invasion of England by the Normans, French was currently used by, French was currently used by

lawyers to write law books. Not really French, but a variety of French calledlawyers to write law books. Not really French, but a variety of French called law Frenchlaw French..

This language was used until its use was forbidden in 1650. Common law is believed toThis language was used until its use was forbidden in 1650. Common law is believed to come from the French “lay commune”.come from the French “lay commune”.The expression does remind of the Latin expressionThe expression does remind of the Latin expression jus communae jus communae. It was used by canon. It was used by canon

lawyers at about the same time.lawyers at about the same time.



Common law is not really a purely English invention. There has been influence fromCommon law is not really a purely English invention. There has been influence from

canon and Roman law.canon and Roman law.The general belief is that common law and Justinian law have developed to form 2The general belief is that common law and Justinian law have developed to form 2

radically different systems.radically different systems.

The meaning of common lawThe meaning of common lawThe expression common law has several meanings.The expression common law has several meanings.

-- Law which is applicable to all the subjects of the kingdomLaw which is applicable to all the subjects of the kingdomEngland, Wales and Scotland (Great Britain) and United KingdomEngland, Wales and Scotland (Great Britain) and United Kingdom

-- Law which is secular Law which is secular (as opposed to canon law). Lay law (“droit laic”)(as opposed to canon law). Lay law (“droit laic”)

-- ‘ ‘Unwritten’ or Unwritten’ or case lawcase law as opposed to written or statute lawas opposed to written or statute law-- A part of case lawA part of case law to be opposed to Equityto be opposed to Equity-- The system of law which is characteristic not only of United Kingdom, but to aThe system of law which is characteristic not only of United Kingdom, but to a

whole set of countrieswhole set of countries influenced and have retained some aspects of the Englishinfluenced and have retained some aspects of the English

legal systemlegal system

ECHR when using Common Law in its decision used the 3ECHR when using Common Law in its decision used the 3

rdrd

meaningmeaning

A brief account of primary historical sourcesA brief account of primary historical sources

The oldest written documents dateThe oldest written documents date from the 6th centuryfrom the 6th century (beginning of the Anglo-Saxon(beginning of the Anglo-Saxon period). But is is as period). But is is as from the 12th centuryfrom the 12th century that documents became numerous.that documents became numerous.TTHEHE LAWSLAWS OFOF HHENRYENRY II (written in(written in 11801180) : Anglo-Saxon system) : Anglo-Saxon systemA document written byA document written by GlanvillGlanvill (Norman name) :(Norman name) : Treaty on the laws and customs of theTreaty on the laws and customs of the

kingdom of England. :kingdom of England. : description of the beginning of the common law system.description of the beginning of the common law system.Those 2 documents are precious to compare both systems.Those 2 documents are precious to compare both systems.Major book byMajor book by Henry de Bracton,Henry de Bracton, De legibus et consuetudinibus Angliae De legibus et consuetudinibus Angliae , , 12351235 (author (author was a judge) : (available on Internet).was a judge) : (available on Internet).

End of 18End of 18thth century :century : William BlackstoneWilliam Blackstone,, Commentaries on the law of England Commentaries on the law of England 1765-1765-17691769. (full text available. (full text available herehere) It became a reference for more than a century. Through) It became a reference for more than a century. Through this book, the influence of the English legal system was propagated to other parts of thethis book, the influence of the English legal system was propagated to other parts of the

world.world.During all those times, numerous books and reports were published. They still exist andDuring all those times, numerous books and reports were published. They still exist and

are still referred to.are still referred to.

Common law Common law

2 theories.2 theories.

Declarative theory Declarative theory according to it, the justices (“magistrate”) do not invent or create common law, but theyaccording to it, the justices (“magistrate”) do not invent or create common law, but they

gradually discover it. Once they have discovered a rule of common law, they expose whatgradually discover it. Once they have discovered a rule of common law, they expose what

it is.it is.Consequence : common law has always been the same through history. If it is hasConsequence : common law has always been the same through history. If it is has

changed, it is because the justices did not see it properly before. It is a long process of changed, it is because the justices did not see it properly before. It is a long process of

elucidation of what common law is.elucidation of what common law is.In 1932 (In 1932 (Donaghue vs. StenvensonDonaghue vs. Stenvenson) a lady in Scotland described as pauper ) a lady in Scotland described as pauper

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(«(« pauvresse pauvresse ») ordered a ginger beer. She drank the bottle, which was opaque, but a dead») ordered a ginger beer. She drank the bottle, which was opaque, but a dead

snail fell into her glass. She was shocked. She brought an action and sued thesnail fell into her glass. She was shocked. She brought an action and sued the manufacturer of the beer. The problem was that she had no contractual relationship withmanufacturer of the beer. The problem was that she had no contractual relationship with

the manufacturer. The court had to decide whether Stevenson was liable (“responsible”).the manufacturer. The court had to decide whether Stevenson was liable (“responsible”).

This case finally reached the House of Lords, where the law Lords decided that in theThis case finally reached the House of Lords, where the law Lords decided that in the

common law there had always been acommon law there had always been a duty of careduty of care, even outside of contractual, even outside of contractual relationships.relationships.By the time the case was judged and this completely novel decision was made, MissBy the time the case was judged and this completely novel decision was made, Miss

Donaghue was dead, but a very important decision was taken.Donaghue was dead, but a very important decision was taken.Although this duty of care had been previously discovered, it was like it had alreadyAlthough this duty of care had been previously discovered, it was like it had already

existed.existed.

The creative theory The creative theory

That the justices create new law. This is something of a scandal to continental Europeans.That the justices create new law. This is something of a scandal to continental Europeans.

Here we have a situation where the separation of powers does not exist : those who judgeHere we have a situation where the separation of powers does not exist : those who judge also make the law.also make the law.

Another view is that common law is based on common sense. What the justices do whenAnother view is that common law is based on common sense. What the justices do when they apply the law, they apply common sense.they apply the law, they apply common sense.

Today when learning law in English law studies, one does need to study at the same timeToday when learning law in English law studies, one does need to study at the same time

to study procedure. Common law developed in a way where you cannot separateto study procedure. Common law developed in a way where you cannot separate

substantive lawsubstantive law andand procedural lawprocedural law..Ex : the Habeas Corpus writ.Ex : the Habeas Corpus writ.Under the Human Rights, there is a chart in which the basic rights of human isUnder the Human Rights, there is a chart in which the basic rights of human is recognised. Under british law until recently, there were no such rights. What there was anrecognised. Under british law until recently, there were no such rights. What there was an

action. Under the Habeas Corpus, if you thought that someone was victim of falseaction. Under the Habeas Corpus, if you thought that someone was victim of false

emprisonment, you could ask a court for a writ of Habeas Corpus. The writ stated either emprisonment, you could ask a court for a writ of Habeas Corpus. The writ stated either

you bring the prisoner to court, or you free it. The right is immanent to the action.you bring the prisoner to court, or you free it. The right is immanent to the action.In the English system, you first find the way to enforce a right, and it is from the meansIn the English system, you first find the way to enforce a right, and it is from the means

that a right is acknowledged.that a right is acknowledged.

The Royal courtsThe Royal courts

In 1066In 1066, the Normans, brutal, uncouth??? Defeated the anglo-saxons and took over the, the Normans, brutal, uncouth??? Defeated the anglo-saxons and took over the

control of England (very quickly). They transformed the anglo-saxons into second classcontrol of England (very quickly). They transformed the anglo-saxons into second class

subjects. But gradually the 2 populations and the 2 languages fused to give progressivelysubjects. But gradually the 2 populations and the 2 languages fused to give progressively modern English.modern English.The belied of common law is that it is rooted in history. It is a continuous development,The belied of common law is that it is rooted in history. It is a continuous development,

and some rules developed in 12and some rules developed in 12thth century are still valid today.century are still valid today.

The Anglo-Saxon period is viewed in 2 ways :The Anglo-Saxon period is viewed in 2 ways :-- a period in which England was very divided, many institutions, several kingdomsa period in which England was very divided, many institutions, several kingdoms

(some say 3, others 7, others even more)(some say 3, others 7, others even more)-- the process of unification was already on the way and had made considerablethe process of unification was already on the way and had made considerable

progress. progress.It is believed that the anglo Saxons developed one central institution, the Witan Moot.It is believed that the anglo Saxons developed one central institution, the Witan Moot.



The word Witan Moot are still found today (it means the Court of the Wise Men). WitThe word Witan Moot are still found today (it means the Court of the Wise Men). Wit

means wise in anglo-saxons. Moot is a court.means wise in anglo-saxons. Moot is a court.Today we still say a moot case. It is a fictional case that law students have to argument toToday we still say a moot case. It is a fictional case that law students have to argument to

develop their skills.develop their skills.TheThe Witan MootWitan Moot was chaired by the King; England was already divided into 32was chaired by the King; England was already divided into 32

administrative sections, called shires or counties. The representative of the King in theadministrative sections, called shires or counties. The representative of the King in the shireshire was called the Sheriff. Each shire was divided into hundreds. Each hundred waswas called the Sheriff. Each shire was divided into hundreds. Each hundred was

divided into thivings (??). In each hiving everyone was responsible in a offence wasdivided into thivings (??). In each hiving everyone was responsible in a offence was

committed. If the thiving oucld not deliver a culprit, all the members of the thiving werecommitted. If the thiving oucld not deliver a culprit, all the members of the thiving were outlawed (which meant that you could be killed without a trial).outlawed (which meant that you could be killed without a trial).At the time justice was self-held or fued ?.At the time justice was self-held or fued ?.There were 2 categories of people : free men or serves.There were 2 categories of people : free men or serves.The system of judgment was ordeal (“ordalie”)The system of judgment was ordeal (“ordalie”)

Ordeal was to be suppressed by the Normans, but a part of it continued until 19Ordeal was to be suppressed by the Normans, but a part of it continued until 19thth

century : trial by battle, which consisted in having the 2 parties fighting with a sword. Itcentury : trial by battle, which consisted in having the 2 parties fighting with a sword. It

was not used after the late 16was not used after the late 16thth century. In the 19century. In the 19

thth century, a litigant suddenly invokedcentury, a litigant suddenly invoked the right of trial by battle, and justices were surprised, thinking it had been abolished inthe right of trial by battle, and justices were surprised, thinking it had been abolished in

1313thth century, which it had not. A statute law abolished it.century, which it had not. A statute law abolished it.

Dane law : which was in the north east of England. This part had customs which had beenDane law : which was in the north east of England. This part had customs which had been

instituted by the Nordic invaders.instituted by the Nordic invaders.In the center of England there was a region called Murcia.In the center of England there was a region called Murcia.In the south, a third zone called Wessex.In the south, a third zone called Wessex.At the time England was not only governed by those 3 major zones, but there was aAt the time England was not only governed by those 3 major zones, but there was a variety of customs which existed.variety of customs which existed.Moreover, there was an opposition between customary rules and canon law. Also anMoreover, there was an opposition between customary rules and canon law. Also an

opposition between folk rights (“droit des peoples”) and royal privilege, which couldopposition between folk rights (“droit des peoples”) and royal privilege, which could

annul this folk rights.annul this folk rights.

After the Norman invasionAfter the Norman invasion, the, the Witan MootWitan Moot was replaced by thewas replaced by the Curia RegisCuria Regis (court of the(court of the King). It was made out of all the important figures of the country. Progressively, theKing). It was made out of all the important figures of the country. Progressively, the

Curia Regis divided in 3 branches ; Parliament, … and Privy Council.Curia Regis divided in 3 branches ; Parliament, … and Privy Council.These royal courts developed from the curia Regis, and the ultimate authority was theThese royal courts developed from the curia Regis, and the ultimate authority was the King. Is till the case today, at least theoretically, that the Crown is the head of all thosKing. Is till the case today, at least theoretically, that the Crown is the head of all thos

institutions.institutions.The Curia Regis would sense around the countries itinerant justices. And these “justicesThe Curia Regis would sense around the countries itinerant justices. And these “justices

in ??”, went around the countries in 6 circuits. They would hear cases as they movedin ??”, went around the countries in 6 circuits. They would hear cases as they moved around those circuits. Occasionaly, there a a movement (the general eyre) and the Kingaround those circuits. Occasionaly, there a a movement (the general eyre) and the King

would hear case, collect taxes… It could be at time extremely feared, it marked royalwould hear case, collect taxes… It could be at time extremely feared, it marked royal authority.authority.Justices in eyre began to administer local. They would go in their circuits and go back toJustices in eyre began to administer local. They would go in their circuits and go back to

Westmnster and discuss customs which had been used, and decided which customs wereWestmnster and discuss customs which had been used, and decided which customs were

to be kept.to be kept.A double movement in emergence of common law : centralised justice andA double movement in emergence of common law : centralised justice and

regionalisation.regionalisation.

This system was in place as of the 12This system was in place as of the 12thth century.century.



Gradually, 3 courts of more stable identity came into existence (until In 1873 – 1873Gradually, 3 courts of more stable identity came into existence (until In 1873 – 1873

JJUDICATUREUDICATURE ACTACT set the current system.)set the current system.)-- under Henry I, In 1100 to 1135, Court of the Exchequer. It heard cases about theunder Henry I, In 1100 to 1135, Court of the Exchequer. It heard cases about the

revenues of the realm.revenues of the realm.-- Under henry II (major contributor to common law development), Court of theUnder henry II (major contributor to common law development), Court of the

Common bench (justices sat on a bench). This court heard cases between ordinaryCommon bench (justices sat on a bench). This court heard cases between ordinary subjects, about common pleas.subjects, about common pleas.-- 1150s : the King’s bench1150s : the King’s bench

Those courts moved around the country. The idea was to try to elaborate rules whichThose courts moved around the country. The idea was to try to elaborate rules which would apply to the whole country. There has been no revolution. It has been a continuouswould apply to the whole country. There has been no revolution. It has been a continuous

process. process.Gradually these courts came to be fixes (result of Gradually these courts came to be fixes (result of MMAGNAAGNA CCARTAARTA ). In the conflict between). In the conflict between the barons and the monarch, the barons obtained that at least one of these should remainthe barons and the monarch, the barons obtained that at least one of these should remain

in one place (Westminster), the Court of the Common Bench (to avoid running throughin one place (Westminster), the Court of the Common Bench (to avoid running through

the country to have justice expressed).the country to have justice expressed).Those 3 courts gradually settled at Westminster. But justices would go out in the countryThose 3 courts gradually settled at Westminster. But justices would go out in the country

to hear cases.to hear cases.One of the difficulty was that Common Law courts developed a new system of trial.One of the difficulty was that Common Law courts developed a new system of trial.

Following the Council of Latran 4, which prohibitaed the use of ordeal in ChristianFollowing the Council of Latran 4, which prohibitaed the use of ordeal in Christian world.world.A new system was developed to try cases. This institution of jury trial (major innovationA new system was developed to try cases. This institution of jury trial (major innovation

– had existed in antiquity). Which was applied to both civil and criminal cases. – had existed in antiquity). Which was applied to both civil and criminal cases.Difficulty : if cases had to be tried in the Royal courts at Westminster, it meant that notDifficulty : if cases had to be tried in the Royal courts at Westminster, it meant that not

only had the parties to come to Westminster, but also the 12 jurys(???). It was veryonly had the parties to come to Westminster, but also the 12 jurys(???). It was very

inconvenient.inconvenient.A new system was developed for regional justice (nisiprius). Royal justice was deliveredA new system was developed for regional justice (nisiprius). Royal justice was delivered

locally.locally.

23 octobre 200723 octobre 2007

Exam : numerous short questionsExam : numerous short questions

A word about CourtsA word about Courts The word Court is used in very general way in English (as opposed to the French wordThe word Court is used in very general way in English (as opposed to the French word

“cour”. In english court is used both fort highest courts and lower courts (“tribunaux”)“cour”. In english court is used both fort highest courts and lower courts (“tribunaux”)After the Norman invasion, the king and his counsellors set up a ssytme of central justice.After the Norman invasion, the king and his counsellors set up a ssytme of central justice. A centralised system fr the administration of justice.A centralised system fr the administration of justice.These central courts :These central courts :

-- Court of the Exchequer (“Court of the Exchequer (“ Echiquier Echiquier ”) : why ? because in this court there was a”) : why ? because in this court there was a sort of large cloth with an Exchequer on which were placed values. This courtsort of large cloth with an Exchequer on which were placed values. This court

was basically a financial court. It was set up at the beginning of the 12was basically a financial court. It was set up at the beginning of the 12thth centurycentury-- The most important courts were the 2 benches (justices sat on benches)The most important courts were the 2 benches (justices sat on benches)

oo The King’s (Queen’s) Bench : cases in which the King was a party. CasesThe King’s (Queen’s) Bench : cases in which the King was a party. Cases

wich disturbe the King’s peace, (“wich disturbe the King’s peace, (“l’ordre publicl’ordre public”)”)oo The Common Bench, which heard the common pleas (French “plaid”) wasThe Common Bench, which heard the common pleas (French “plaid”) was

a court specialised in cases where 2 subjects were opposeda court specialised in cases where 2 subjects were opposed

These courts developed as of the end of 12These courts developed as of the end of 12thth century, and went on to the end of 19century, and went on to the end of 19

thth



century. These courts were the main courts for the development of common law.century. These courts were the main courts for the development of common law.

Judges or Justices : if the equivalent of the French word “Judges or Justices : if the equivalent of the French word “magistrat magistrat ””The word magistrate in English has a completely different meaning. It means the lower The word magistrate in English has a completely different meaning. It means the lower

judges (equivalent to “ judges (equivalent to “ juges de paix juges de paix”)”)

This centralised system of courts resulted in a problem, if Common Law had to developThis centralised system of courts resulted in a problem, if Common Law had to develop

as the common law of the whole country: how the law developed in Westminster was toas the common law of the whole country: how the law developed in Westminster was to be administered all over England, England and Wales, England, Wales and Ireland. be administered all over England, England and Wales, England, Wales and Ireland.The system which was developed was the system of assizes. It did not concern onlyThe system which was developed was the system of assizes. It did not concern only

criminal law as in France, but both criminal and civil law. By this system, cases couldcriminal law as in France, but both criminal and civil law. By this system, cases could heard all over the country. This was done by a fiction calledheard all over the country. This was done by a fiction called nisipriusnisiprius.(if not before). The.(if not before). The

fiction consists in saying that the case would be judged at Westminster except if before afiction consists in saying that the case would be judged at Westminster except if before a

justice of the Royal court has not come in the region to judge the case). justice of the Royal court has not come in the region to judge the case).These assizes were usually held during the holidays of the central courts. The sending outThese assizes were usually held during the holidays of the central courts. The sending out of justices became the law common to the whole of Britain, then Great-Britain.of justices became the law common to the whole of Britain, then Great-Britain.

These assizes, or courts of Assizes, continued to exist until 1972.These assizes, or courts of Assizes, continued to exist until 1972.The assizes heard the most important cases, and less important cases were heard in courtsThe assizes heard the most important cases, and less important cases were heard in courts calledcalled quarter sessionsquarter sessions. Theses quarter sessions were partly run by the justices of the. Theses quarter sessions were partly run by the justices of the

peace, the magistrates. peace, the magistrates.For very small offences, there were alsoFor very small offences, there were also petty sessions petty sessions. These were run exclusively by. These were run exclusively by magistrates. The word “petty” in a remnant of law-French.magistrates. The word “petty” in a remnant of law-French.

Magistrates were responsible for small offences (“Magistrates were responsible for small offences (“offenseoffense” in French, but the French” in French, but the French word has a religious connotation. The legal translation is “word has a religious connotation. The legal translation is “infractioninfraction”)”)An offence can be of different categories.An offence can be of different categories.AsAs from the 12th centuryfrom the 12th century, these men who were appointed by the Lord Chancellor, who, these men who were appointed by the Lord Chancellor, who

was in fact responsible to a certain degree for the administration of justice.was in fact responsible to a certain degree for the administration of justice.The magistrates intervene in the petty sessions, in the. But they also had administrativeThe magistrates intervene in the petty sessions, in the. But they also had administrative

responsibilities. The magistrates were often said to have been untrained in the law, andresponsibilities. The magistrates were often said to have been untrained in the law, and

yet still today they administer justice in a great majority of criminal cases. In fact this isyet still today they administer justice in a great majority of criminal cases. In fact this is true today that magistrates do not have legal training, but are chosen as responsibletrue today that magistrates do not have legal training, but are chosen as responsible

citizens. In the past, magistrates often belong to upper class, and often had training in thecitizens. In the past, magistrates often belong to upper class, and often had training in the

Inns of Court. The Inns of Court were the law schools that were established very early (inInns of Court. The Inns of Court were the law schools that were established very early (in the middle ages) and still active today. They today are situated close to the supremethe middle ages) and still active today. They today are situated close to the supreme

courts. People who want to become barristers (“avocet plaideur”) are trained in those. Acourts. People who want to become barristers (“avocet plaideur”) are trained in those. A

barrister is specialised in pleading. barrister is specialised in pleading.

Until theUntil the middle of 19th centurymiddle of 19th century, the religious courts plaid an important role in the, the religious courts plaid an important role in the administration of justice. They administer a different system of law, the canon law, or itsadministration of justice. They administer a different system of law, the canon law, or its modification after the reformation. This law was applicable not only to members of themodification after the reformation. This law was applicable not only to members of the

clergy but also to all the subjects in certain domains. What were these domains in whichclergy but also to all the subjects in certain domains. What were these domains in which

these courts had jurisdiction (“these courts had jurisdiction (“compétencecompétence”) (to have jurisdiction over XX) ?”) (to have jurisdiction over XX) ?-- matrimonial law : everything concerning marriages, divorcesmatrimonial law : everything concerning marriages, divorces-- family matters (a large part of it)family matters (a large part of it)-- Probate law: which concerned wills (“Probate law: which concerned wills (“testament testament ”). (“”). (“droit des successionsdroit des successions”), but”), but



limited to personal belongings or to chattels (??) (“limited to personal belongings or to chattels (??) (“meublesmeubles”).”).

-- Until the 17Until the 17thth century, the ecclesiastical courts had jurisdiction on promises (ascentury, the ecclesiastical courts had jurisdiction on promises (as

opposed to sealed contracts – “opposed to sealed contracts – “contrats solennelscontrats solennels”)”)-- Much of defamation : these matters (promises and defamation) were considered toMuch of defamation : these matters (promises and defamation) were considered to

be spiritual matters (not lay (“ be spiritual matters (not lay (“laiclaic”) matters)”) matters)

During 17th centuryDuring 17th century,, Royal CourtsRoyal Courts extended their jurisdiction over promises andextended their jurisdiction over promises and defamation, which gave birth to contract law, which gave birth to nude contracts (pate nu,defamation, which gave birth to contract law, which gave birth to nude contracts (pate nu, nudum pactumnudum pactum), or simple contract (“), or simple contract (“contrat sous seing privé contrat sous seing privé ”). Today contract law is”). Today contract law is

modelled on the simple contract, not the sealed contract.modelled on the simple contract, not the sealed contract.Similar over defamation. Defamation has 2 forms: the first most serious form is calledSimilar over defamation. Defamation has 2 forms: the first most serious form is called

liabel, where there is a written, therefore permanent form. The other form is calledliabel, where there is a written, therefore permanent form. The other form is called

slander. Slander is oral defamation or defamation which leaves no trace. The English lawslander. Slander is oral defamation or defamation which leaves no trace. The English law of defamation is marked by this difference and the law for the 2 is different.of defamation is marked by this difference and the law for the 2 is different.The old Norman courses (Moots) officially continued to exist, but they fell into disuse,The old Norman courses (Moots) officially continued to exist, but they fell into disuse,

until they were abolished int 19until they were abolished int 19thth and 20and 20

thth century.century.But the Manorial Courts continued to administer justice locally, but fell into disuse inBut the Manorial Courts continued to administer justice locally, but fell into disuse in favour of quarter sessions and other Royal local courts.favour of quarter sessions and other Royal local courts.

Common law procedureCommon law procedure

How is it that the Royal courts managed to take the place of the old, more regionalHow is it that the Royal courts managed to take the place of the old, more regional system of administration of justice ?system of administration of justice ?What did the new system offer more than the old one ? The answer : procedure.What did the new system offer more than the old one ? The answer : procedure.One of the key points of Common Law is that it is rooted in procedure.One of the key points of Common Law is that it is rooted in procedure.

The Common Law until middle of 19The Common Law until middle of 19thth century was extremely formalised. Formalismecentury was extremely formalised. Formalisme

has the advantage of ensuring certainty, it gives the feeling that similar cases will behas the advantage of ensuring certainty, it gives the feeling that similar cases will be

judged in similar ways. judged in similar ways.In English, distinction between 2 types of law : substantive law (“In English, distinction between 2 types of law : substantive law (“droit de fond droit de fond ”) and”) and adjectival law (“adjectival law (“droit de procéduredroit de procédure”).”).English substantive law is originally not separable from adjectival law.English substantive law is originally not separable from adjectival law.Today in English law schools, the 2 are separated (courses on tort law (“obligationsToday in English law schools, the 2 are separated (courses on tort law (“obligations délictuelles”), contract law (separated from tort law because the procedure weredélictuelles”), contract law (separated from tort law because the procedure were

originally different).originally different).

The writ systemThe writ system

These Royal Courts at first were courts of exception. The local courts (manorial and other These Royal Courts at first were courts of exception. The local courts (manorial and other

Anglo Saxon courts) were the normal courts.Anglo Saxon courts) were the normal courts.To be permitted to bring a case before the Royal Courts, you had to obtain a writ, a formTo be permitted to bring a case before the Royal Courts, you had to obtain a writ, a form

of action. This form of action was a document (“un formulaire”). This used of the writesof action. This form of action was a document (“un formulaire”). This used of the writes

in latin continued untils mid-16in latin continued untils mid-16thth century. These writs were obtained from the Loardcentury. These writs were obtained from the Loard

Chancellor. You had to pay for these rits. So the Royal Courts also obtained an advantageChancellor. You had to pay for these rits. So the Royal Courts also obtained an advantage which wa money. Why did people wanted to be judged by Royal Courts if it costedwhich wa money. Why did people wanted to be judged by Royal Courts if it costed

money ?money ?If you wanted to bring an action before the royal Courts, the facts of the case had toIf you wanted to bring an action before the royal Courts, the facts of the case had to



coincide perfectly with the form of action. Ex : trespass originally (no trespassing : notcoincide perfectly with the form of action. Ex : trespass originally (no trespassing : not

allowed to go in the property of someone else). The writ for trespass Vi et arnis meanallowed to go in the property of someone else). The writ for trespass Vi et arnis mean (force and weapons) was possible only if you wanted to bring an action against someone(force and weapons) was possible only if you wanted to bring an action against someone

who had used force and weapons. You had to select the writ which coincided exactly. Butwho had used force and weapons. You had to select the writ which coincided exactly. But

the number of writs was limited. If no writ was available, no remedy was possible “nothe number of writs was limited. If no writ was available, no remedy was possible “no

remedy without a writ”remedy without a writ”Royal Courts wanted to extend their jurisdiction, so the added new writsRoyal Courts wanted to extend their jurisdiction, so the added new writs Note : writs were need all along the procedure (“ Note : writs were need all along the procedure (“en cours de procédureen cours de procédure). There were). There were

original writs and judicial writs.original writs and judicial writs.The Lords Chancellor created new writs.The Lords Chancellor created new writs.But there a quick reaction in the 13 th century : the barons saw their jurisdiction shrink.But there a quick reaction in the 13 th century : the barons saw their jurisdiction shrink.

At a moment when the King was weak, thebarons obtained that no new writs could beAt a moment when the King was weak, thebarons obtained that no new writs could be created. Royal Courts were prohibited to write new writs. They allowed cases similar tocreated. Royal Courts were prohibited to write new writs. They allowed cases similar to

existing writs to be heard. Theses new writs were called “actions upon a case”. It isexisting writs to be heard. Theses new writs were called “actions upon a case”. It is

through such actions that contract law and law of defamations were developed.through such actions that contract law and law of defamations were developed.The other cas was for pleadings (ATTENTION :this means “échange de conclusion”)The other cas was for pleadings (ATTENTION :this means “échange de conclusion”)

Very important aspect of English law. The pleadings were pre trial proceedings. You stillVery important aspect of English law. The pleadings were pre trial proceedings. You still have to exchange pleadings before your case can be heard by the courts.have to exchange pleadings before your case can be heard by the courts.

Until the 19Until the 19thth century, English pleadings were submitted to very strict rules. Thecentury, English pleadings were submitted to very strict rules. The

barrister, who has to write the pleadings and expose before the cour. The purpose of these barrister, who has to write the pleadings and expose before the cour. The purpose of these

pleadings was to reduce the conflict between the parties through the rules and mechanism pleadings was to reduce the conflict between the parties through the rules and mechanism

of the pleadings, through one question. The parties had to have reduced their conflict toof the pleadings, through one question. The parties had to have reduced their conflict to one question.one question.When reading reports, you will find “the simple question in this case is”. How is itWhen reading reports, you will find “the simple question in this case is”. How is it

possible ? Because justices have been trained to this. In the 19 possible ? Because justices have been trained to this. In the 19thth century, alternativecentury, alternative

pleadings were allowed. This a very beautiful system. This mechanism forced the partie pleadings were allowed. This a very beautiful system. This mechanism forced the partie to reduce their conflictto reduce their conflictTheir were categories of question :Their were categories of question :

-- the issue (which became a common word)the issue (which became a common word)-- the demurrer (from french word “demeurer”)the demurrer (from french word “demeurer”)

Issue : a question of fact and if the parties to reduce their conflict to a question of fact,Issue : a question of fact and if the parties to reduce their conflict to a question of fact,

then the trial could begin and the case would be bring before a court. Until the 19then the trial could begin and the case would be bring before a court. Until the 19thth

century, nearly all majors cases were tried by jurys. Until 19century, nearly all majors cases were tried by jurys. Until 19thth century, jurys had ancentury, jurys had an

exclusive jurisdiction over questions of factsexclusive jurisdiction over questions of facts

Ex : first issue resulted from what was called a traverse. This consisted in a denialEx : first issue resulted from what was called a traverse. This consisted in a denial

(“(“denegationdenegation”). “No I haven’t done this” is a traverse. The issue is “Has he done that ?”.”). “No I haven’t done this” is a traverse. The issue is “Has he done that ?”.

But the defendant can also say : yes I have broken my contractual obligations, but youBut the defendant can also say : yes I have broken my contractual obligations, but you forced me to enter into this contract. This type of defense was called “a confession andforced me to enter into this contract. This type of defense was called “a confession and

avoidance”. You recognise the facts, but you avoid the legal consequences of those factsavoidance”. You recognise the facts, but you avoid the legal consequences of those facts

by a justification or excuse. by a justification or excuse.Demurrer : it consists in raising a question of law. There the question would be :Demurrer : it consists in raising a question of law. There the question would be :

plaintiff : the defendant has broken its contractual obligation. Defendant says : “so whar”. plaintiff : the defendant has broken its contractual obligation. Defendant says : “so whar”.

The question then is a demurrer for the justice to resolve “does the fact of breakingThe question then is a demurrer for the justice to resolve “does the fact of breaking



contractual obligations has legal consequences ?” – very obvious here).contractual obligations has legal consequences ?” – very obvious here).

Once the question had been agreed upon by the parties, the parties knew what argumentOnce the question had been agreed upon by the parties, the parties knew what argument

and what proofs to support their position. The question was frozen from the moment theand what proofs to support their position. The question was frozen from the moment the

pleadings were agreed upon. There were no possible surprises during the trial, which pleadings were agreed upon. There were no possible surprises during the trial, which

allowed both parties to prepare.allowed both parties to prepare.This is completely different from inquisitive system, where the justice can ask anyThis is completely different from inquisitive system, where the justice can ask any

question.question.

This meant that the cost of the trial were lower (no need to prepare for any movement)This meant that the cost of the trial were lower (no need to prepare for any movement)The pleadings were written down, and kept into the courts, recorded in the Court rolesThe pleadings were written down, and kept into the courts, recorded in the Court roles (and of course the judgment). This enabled a second feature of Common Law:(and of course the judgment). This enabled a second feature of Common Law: resres

judicata judicata. (Authority of judged matters).. (Authority of judged matters).This meant that the same case could not be judged again and again. The Cours ensuredThis meant that the same case could not be judged again and again. The Cours ensured

finality of the judgment, but alsofinality of the judgment, but also enforceabilityenforceability, because de, because de Royal CourtsRoyal Courts were the courtswere the courts of the King. Not following those decisions exposed for an criminal action for contempt of of the King. Not following those decisions exposed for an criminal action for contempt of

court (“court (“mépris de la cour mépris de la cour ”);”);The other feature because there was a recording wasThe other feature because there was a recording was stare decisis stare decisis, Latin expression, Latin expression (incorrect Latin)(incorrect Latin) which means «which means « the doctrine according to which judges must judgethe doctrine according to which judges must judge

similar cases in a similar manner similar cases in a similar manner ». In other words, they must follow precedents. This». In other words, they must follow precedents. This

doctrine was instituted only in thedoctrine was instituted only in the 19th century19th century. But. But before the 19th before the 19th, and as, and as from the 12thfrom the 12th centurycentury, the Royal Courts developed habits of judging cases. There was not a strict rule, the Royal Courts developed habits of judging cases. There was not a strict rule

of of stare decisis stare decisis, but there was a, but there was a style of judging which was specific to the Royal Courtsstyle of judging which was specific to the Royal Courts..

Common Law developed a decision type.Common Law developed a decision type. The common law courts were to a certainThe common law courts were to a certain

degree predictable in their judgmentsdegree predictable in their judgments. When they handed down a decision, they would. When they handed down a decision, they would refer to previous decisions. They do it even today (today a judge could refer to a case inrefer to previous decisions. They do it even today (today a judge could refer to a case in

the 16the 16thth century).century).

In the English law, justices must know the precedents as much as they must know theIn the English law, justices must know the precedents as much as they must know the laws of Parliament.laws of Parliament.

The other feature is that the Royal Courts had a system of trial in which the jury was aThe other feature is that the Royal Courts had a system of trial in which the jury was a central institution. The jury system is inseparable of the development of common lawcentral institution. The jury system is inseparable of the development of common law

(also until the 19(also until the 19thth century).century).

Advantage of jury system : the litigants had the feeling that they were judge not by their Advantage of jury system : the litigants had the feeling that they were judge not by their

superiors, but by their peers (people similar to them). This was a rather popular form of superiors, but by their peers (people similar to them). This was a rather popular form of judgment (preferable to ordeal of compurgation). judgment (preferable to ordeal of compurgation).

30 october 200730 october 2007

The Court of Common Pleas, also called the Common Bench, and the King’s Bench.The Court of Common Pleas, also called the Common Bench, and the King’s Bench.The Royal Courts were emanations of the King (known as the fountain of Justice). TheThe Royal Courts were emanations of the King (known as the fountain of Justice). The idea that there sould be an appeal was somewhat incoherent with the idea that theseidea that there sould be an appeal was somewhat incoherent with the idea that these

courts were emananations of the King.courts were emananations of the King.But there were possibilities of what was called judicial review, the idea that a deiciosnBut there were possibilities of what was called judicial review, the idea that a deiciosn

could be revides, re-examined and mofieid. One of the means in which in was done wascould be revides, re-examined and mofieid. One of the means in which in was done was though a writ of error. Hower the justice which heard those reviews were the samethough a writ of error. Hower the justice which heard those reviews were the same

justices which were responsible for the firsqt hearing. No Court of appeal per se. justices which were responsible for the firsqt hearing. No Court of appeal per se.



These royal courts had attracted litigants (justiciables) because of a certain number of These royal courts had attracted litigants (justiciables) because of a certain number of

features of procedure in those royal courts.features of procedure in those royal courts.As often happens, what was perceived as an advantage as an adavantage at one stageAs often happens, what was perceived as an advantage as an adavantage at one stage

came to be seen as disadvantages;came to be seen as disadvantages;-- The Common Law tried cases through a jury of 12 men. Cases both civil andThe Common Law tried cases through a jury of 12 men. Cases both civil and

criminal were tried by jury. At least the factual questions were tried by a jury. Thecriminal were tried by jury. At least the factual questions were tried by a jury. The legal questions were tried by a judge. The jury system was satisfactory because itlegal questions were tried by a judge. The jury system was satisfactory because it

meant being judged by one’s peers, but the jury was exposed to a problem : ameant being judged by one’s peers, but the jury was exposed to a problem : a

member of the jury could be corrupted.member of the jury could be corrupted.-- The very strict fomalism was such that in cerain cases one could fit the facts intoThe very strict fomalism was such that in cerain cases one could fit the facts into

the existing writs (no writ, no remedy)the existing writs (no writ, no remedy)-- Very strict rules of proof Very strict rules of proof -- The kind of remedy (dispositifs). The primary sort of remedy in a conflict wasThe kind of remedy (dispositifs). The primary sort of remedy in a conflict was

damages. In certain cases, a plaintiff does not want compensation or damages,damages. In certain cases, a plaintiff does not want compensation or damages,

what he wants is a change in a situation. Ex : he might want a person who iswhat he wants is a change in a situation. Ex : he might want a person who is causing a nuisance to be prevented to make that nuisance.causing a nuisance to be prevented to make that nuisance.

One a royal court has handed down a decision, there was a possibility for judicial review,One a royal court has handed down a decision, there was a possibility for judicial review, but judicial review always in term of common law. This was not felt to be always but judicial review always in term of common law. This was not felt to be always

satisfactory.satisfactory.

Equity Equity

There was a question : had the King exhausted its power as fountain of justice throughThere was a question : had the King exhausted its power as fountain of justice through

common law courts, and he still a power to justice directly. The second theory held.common law courts, and he still a power to justice directly. The second theory held.Equity in English also sometimes opposed to the idea of justice. It is something after Equity in English also sometimes opposed to the idea of justice. It is something after justice, something that does take the letter of the law, but may be more the intention of justice, something that does take the letter of the law, but may be more the intention of

the law. It is also more focused on the behaviour of the parties.the law. It is also more focused on the behaviour of the parties.Equity : justice in sense of justice beyond the justice of the law.Equity : justice in sense of justice beyond the justice of the law.

Equity is another source of case law. It not only the idea that something is necessary. It isEquity is another source of case law. It not only the idea that something is necessary. It is a true source of case law.a true source of case law.The king had an adviser who had the title of Lord Chancellor. This man was responsibleThe king had an adviser who had the title of Lord Chancellor. This man was responsible for the Great Seal (for the Great Seal (le grand sceaule grand sceau). His function as keeper of the Seal was devoted to). His function as keeper of the Seal was devoted to

another person theanother person the Lord Keeper Lord Keeper . Th e Lord Chancelor is stilled today a very important. Th e Lord Chancelor is stilled today a very important

person (very recently it even had precedence over the Prime Minister). person (very recently it even had precedence over the Prime Minister).Litigants could introduce a petition of rights to the Lord Chancellor. The LordLitigants could introduce a petition of rights to the Lord Chancellor. The Lord Chancellor, for a very long time, was usually an ecclesiastic. As such, he was familiar Chancellor, for a very long time, was usually an ecclesiastic. As such, he was familiar

with another body of law, canon law, and though it familiar with Justinian law (romanwith another body of law, canon law, and though it familiar with Justinian law (roman

law of the later period).law of the later period).He would resolve cases sometimes in a different manner. He would do this in conscienceHe would resolve cases sometimes in a different manner. He would do this in conscience

(selon sa conscience). This conscience which had been developed by Canon Law and(selon sa conscience). This conscience which had been developed by Canon Law and Justinian law. Therefore, depending on who was the Lord Chancellor, the equity changedJustinian law. Therefore, depending on who was the Lord Chancellor, the equity changed a lot. It changed so much that it was exposed to he criticism.a lot. It changed so much that it was exposed to he criticism. John SeldomJohn Seldom criticisingcriticising

equity or the Court of Conscience said that equity varied like the Chancellor’s foot. Thisequity or the Court of Conscience said that equity varied like the Chancellor’s foot. This

was a good way of formulating this criticism for subjectivity for the Court of Chancery?was a good way of formulating this criticism for subjectivity for the Court of Chancery?In reaction of this criticism, the Court of Equity developed rules rather similar in a senseIn reaction of this criticism, the Court of Equity developed rules rather similar in a sense

to those of common law, rules that were objectivised, formulated in a series of maxims,to those of common law, rules that were objectivised, formulated in a series of maxims,

and still known as the maxims of equity.and still known as the maxims of equity.





monopoly sense here). There is no translation for the word trust, because French law hasmonopoly sense here). There is no translation for the word trust, because French law has

not developed such an instrument. In France, a diversity of instruments allows to donot developed such an instrument. In France, a diversity of instruments allows to do similar things.similar things.A trust is a body of equity, and it was developed by the courts of equity.A trust is a body of equity, and it was developed by the courts of equity.When the crusaders left their property, their estate ..... During that absence these barons,When the crusaders left their property, their estate ..... During that absence these barons,

lords knights needed that property to be administered. In the feudal system for someonelords knights needed that property to be administered. In the feudal system for someone to administer an estate, he had to enfioffed (he had to have a fief??? on the property).to administer an estate, he had to enfioffed (he had to have a fief??? on the property).

Knight would enfief their property to a trustworthy friend. This friend in the long absenceKnight would enfief their property to a trustworthy friend. This friend in the long absence

was entitled to administer the property. The only problem was that friends are whatwas entitled to administer the property. The only problem was that friends are what friends are. When coming back, the knight would ask to return the property, and often thefriends are. When coming back, the knight would ask to return the property, and often the

friend would refuse. The knight would bring an action before the benches in order tofriend would refuse. The knight would bring an action before the benches in order to

recover its property. Common law said: you shouldn’t have conveyed your property. Therecover its property. Common law said: you shouldn’t have conveyed your property. The common law did not recognise what had happened, which was the understanding that thecommon law did not recognise what had happened, which was the understanding that the

friend would administer the property of the knight’s benefits: it did not recognise whatfriend would administer the property of the knight’s benefits: it did not recognise what

was in the minds of both litigants.was in the minds of both litigants.TheThe Lord Chancellor Lord Chancellor examined the conscience of both parties. By glosing the commonexamined the conscience of both parties. By glosing the common

law, it would enable the original owner to recover its property. The trust was created: alaw, it would enable the original owner to recover its property. The trust was created: a system by which the settler can convey property to a trustee. A trustee can be a bank, asystem by which the settler can convey property to a trustee. A trustee can be a bank, a

lawyer; anyone. The trustee under trust law is accountable for the way it manages thelawyer; anyone. The trustee under trust law is accountable for the way it manages the property. For example, it possible to convey property to a trustee for your children who property. For example, it possible to convey property to a trustee for your children who

will recover the property at a specified age (18, 21...). System widely used (for will recover the property at a specified age (18, 21...). System widely used (for

universities, handicapped children…)universities, handicapped children…)The court of equity also developed law regarding parole agreements (The court of equity also developed law regarding parole agreements (accords oraux ouaccords oraux ou

actes sous seing privé actes sous seing privé ). Common law originally recognised deeds (). Common law originally recognised deeds (actes solennelsactes solennels).).Equity itself came to be considered as unfair: the inequity of equity.Equity itself came to be considered as unfair: the inequity of equity.At the beginning of the 19th centuryAt the beginning of the 19th century, philosophers like, philosophers like BenthamBentham or novelists (or novelists (DickensDickens,,

Bleak house Bleak house) began to criticise equity, saying that it was too rigorous. One of those was) began to criticise equity, saying that it was too rigorous. One of those was

that procedure was very long.that procedure was very long.TheThe Court of ChanceryCourt of Chancery unlike Common law had developed a possibility of appeal fromunlike Common law had developed a possibility of appeal from 1675, appeal to the House of Lords.1675, appeal to the House of Lords.

Development of the present day court systemDevelopment of the present day court system

The 3 common law courts, King’s bench (originally to hear cases concerning theThe 3 common law courts, King’s bench (originally to hear cases concerning the

monarch and subjects, cases which in some way put in danger the King’s peace), Court of monarch and subjects, cases which in some way put in danger the King’s peace), Court of the Exchequer (danger for the King’s revenue) and Court of Common Pleas. Those 3the Exchequer (danger for the King’s revenue) and Court of Common Pleas. Those 3

courts over time came to have jurisdiction over cases which were not as distinct as that.courts over time came to have jurisdiction over cases which were not as distinct as that.A maxim of equity:A maxim of equity:Those courts also came to feel that multiplicity of courts should be avoided. Ex: Court of Those courts also came to feel that multiplicity of courts should be avoided. Ex: Court of

the Exchequer handled cases where litigants had failed to pay taxes. What happened if the Exchequer handled cases where litigants had failed to pay taxes. What happened if the litigant pleaded that he had not paid because he was in an action of debt with another the litigant pleaded that he had not paid because he was in an action of debt with another person. The Court of Exchequer decided that it should therefore have jurisdiction over the person. The Court of Exchequer decided that it should therefore have jurisdiction over the

other cases.other cases.In this way, all these courts with time came to have a rather similar scope of jurisdiction.In this way, all these courts with time came to have a rather similar scope of jurisdiction.In the course of time, it was felt that there was no longer a true justification for theIn the course of time, it was felt that there was no longer a true justification for the

existence of 3 different Common Law courts.existence of 3 different Common Law courts.Moreover procedure in these courts came to change. In 1834, in the Uniformity of Moreover procedure in these courts came to change. In 1834, in the Uniformity of



Procedure Act, and the in 1852 in the Common law procedure Act and 1875 in theProcedure Act, and the in 1852 in the Common law procedure Act and 1875 in the

Judicature Act (full name, Supreme Court of Judicature Act), the writ system wasJudicature Act (full name, Supreme Court of Judicature Act), the writ system was abolished and the system of pleadings was simplified. The system which was put in placeabolished and the system of pleadings was simplified. The system which was put in place

has since then remained basically the same.has since then remained basically the same.To begin an action, one just needs to obtain a single writ, common to all actions: a writ of To begin an action, one just needs to obtain a single writ, common to all actions: a writ of

summons.summons.The pleadings also have been simplified (of course they are in English since beginning of The pleadings also have been simplified (of course they are in English since beginning of

1818thth). If you are a plaintiff, you must fill in a statement of claim (). If you are a plaintiff, you must fill in a statement of claim (déclaration dedéclaration de

demandedemande). The defence must introduce a defence ??. It can also make a counter claim.). The defence must introduce a defence ??. It can also make a counter claim.Moreover in 1854 something else changed. The system of jury trial for both civil andMoreover in 1854 something else changed. The system of jury trial for both civil and

criminal trials was modified. It became possible for litigants to ask the justices to try bothcriminal trials was modified. It became possible for litigants to ask the justices to try both

questions of law and question of facts, making the recourse to a jury unnecessary. Thequestions of law and question of facts, making the recourse to a jury unnecessary. The jury system is practically never used for civil cases. jury system is practically never used for civil cases.

In 1877, the ecclesiastical courts lost their jurisdiction over family matters and probatesIn 1877, the ecclesiastical courts lost their jurisdiction over family matters and probates (law related to wills).(law related to wills).

There was also a risk of conflict between the 2 sources of the law.There was also a risk of conflict between the 2 sources of the law.This conflict had to be resolved for a new system of court to be developed.This conflict had to be resolved for a new system of court to be developed.There was a conflict, and in 1806 it became a physical conflict. TheThere was a conflict, and in 1806 it became a physical conflict. The Chief Justice CokeChief Justice Coke

and theand the Lord Chancellor ElsmereLord Chancellor Elsmere sent their men to fight in the streets for cases, to makesent their men to fight in the streets for cases, to make

either the Common law of Equity prevail.either the Common law of Equity prevail.

King James 1King James 1stst was asked to decide which of the 2 courts should prevail over the other.was asked to decide which of the 2 courts should prevail over the other.

The King decided that in certain cases, the Court of Chancery would prevail. From thatThe King decided that in certain cases, the Court of Chancery would prevail. From that

time, Equity was believed to be superior, but this was legally established only in 1873-time, Equity was believed to be superior, but this was legally established only in 1873-1875.1875.1873-1875: the Judicature Act. An immense reform.1873-1875: the Judicature Act. An immense reform.The Common Bench and Court of Exchequer disappeared. A new court was created: theThe Common Bench and Court of Exchequer disappeared. A new court was created: the

Supreme Court of JudicatureSupreme Court of Judicature. This court originally had 5 divisions: Queen’s Bench. This court originally had 5 divisions: Queen’s Bench

division, the Common Bench and the Exchequer. Very quickly, they were fuse in thedivision, the Common Bench and the Exchequer. Very quickly, they were fuse in the Queen’s BenchQueen’s Bench; the; the Chancery divisionChancery division and the Family division (took over jurisdiction of and the Family division (took over jurisdiction of

the Church).the Church).After theAfter the JJUDICATUREUDICATURE AACTCT a system of appeal was developed. The Court of Appeal wasa system of appeal was developed. The Court of Appeal was

instituted on the model of the ecclesiastical courts, which had appeals since 16instituted on the model of the ecclesiastical courts, which had appeals since 16thth century.century.

Another level of appeal was instituted: theAnother level of appeal was instituted: the judicial committee of the House of Lords judicial committee of the House of Lords. It. It

was staffed by highest justices: the Law Lords, or lords of appeal in ordinary.was staffed by highest justices: the Law Lords, or lords of appeal in ordinary.In 1907 the Court of Appeal, criminal division was created.In 1907 the Court of Appeal, criminal division was created.

House of Lords 1876House of Lords 1876Court of Appeal, 1873Court of Appeal, 1873Coot of Appeal, criminal division 1907Coot of Appeal, criminal division 1907Supreme Court of Judicature, with King’s bench (tort law, contracts…), Court of Supreme Court of Judicature, with King’s bench (tort law, contracts…), Court of

Chancery (jurisdiction over trusts), family divisions (matrimonial matters, divorce, will,Chancery (jurisdiction over trusts), family divisions (matrimonial matters, divorce, will, probates). probates).These courts were and still are central. They are located in London in the building of theThese courts were and still are central. They are located in London in the building of the

Royal Courts. They have provincial (remnants of assizes).Royal Courts. They have provincial (remnants of assizes).



Until 1971, the assizes remained both for civil and criminal matters. It was thenUntil 1971, the assizes remained both for civil and criminal matters. It was then

abolished. For civil law, province centres were created, and for criminal matters, Crownabolished. For civil law, province centres were created, and for criminal matters, Crown Courts were created for important criminal cases. For lesser cases, the magistrate’s courtsCourts were created for important criminal cases. For lesser cases, the magistrate’s courts

(??) remained and still exist today.(??) remained and still exist today.In 1846, the workload of the assizes for the civil side was alleviated by the creation of In 1846, the workload of the assizes for the civil side was alleviated by the creation of

County Courts (County Courts (tribunaux des comtéstribunaux des comtés).).

There have been further reforms under Tony Blair.There have been further reforms under Tony Blair.In 2003, there was the Court act 2003. It replaced the compound made out of the 2In 2003, there was the Court act 2003. It replaced the compound made out of the 2

divisions of the Court of Appeal and Supreme Court Judicature bydivisions of the Court of Appeal and Supreme Court Judicature by Her Majesty’s CourtHer Majesty’s Court

ServiceService (see website).(see website).In the new system, Her Majesty’s Court Service administer the Court of Appeal, bothIn the new system, Her Majesty’s Court Service administer the Court of Appeal, both civil and criminal divisions, and bellows that the Queen’s bench division (includingcivil and criminal divisions, and bellows that the Queen’s bench division (including

administrative Courts), Chancery Court and Family division.administrative Courts), Chancery Court and Family division.Criminal courts are still the Crown Courts.Criminal courts are still the Crown Courts.The magistrate’s courts for the first time in English history form part with the globalThe magistrate’s courts for the first time in English history form part with the global

judicial system. judicial system.

About the House of LordsAbout the House of LordsBefore these reforms, House of Lords was the Supreme Court. It was through it that lawBefore these reforms, House of Lords was the Supreme Court. It was through it that law

was unified. Following the reforms of Tony Blair, thewas unified. Following the reforms of Tony Blair, the judicial committee judicial committee is to beis to be rebaptised therebaptised the Supreme Court,Supreme Court, like in USA. This court which today still sits inlike in USA. This court which today still sits in House of House of

ParliamentParliament will soon have its own building, marking a stronger separation betweenwill soon have its own building, marking a stronger separation between

legislative power and judicial power.legislative power and judicial power.

6 November 20066 November 2006

Characteristic feature of English institutions: their continuous development.Characteristic feature of English institutions: their continuous development.

This means that the law also has developed in a continuous manner.This means that the law also has developed in a continuous manner.There has been no break in this development. In France, after the Revolution the legalThere has been no break in this development. In France, after the Revolution the legal system was completely rewritten. Not the case in England.system was completely rewritten. Not the case in England.This explains the importance of studying history of law and institutions.This explains the importance of studying history of law and institutions.

New rules also for judges. At that time the justices could not be removed. They had to be New rules also for judges. At that time the justices could not be removed. They had to be

kept, and that’s why it took some time to reduce the Supreme Court of Judicature to akept, and that’s why it took some time to reduce the Supreme Court of Judicature to a

single division, the Queen’s Bench division. This division remained until very recently.single division, the Queen’s Bench division. This division remained until very recently.For more that a century, the Supreme Court of Judicature continued to exist. Queen’sFor more that a century, the Supreme Court of Judicature continued to exist. Queen’s

bench had original jurisdiction (competence de première instance) on tort law bench had original jurisdiction (competence de première instance) on tort law

((responsabilité délictuelleresponsabilité délictuelle) and contract law.*) and contract law.*

The second division was and is still called the Chancery division. It had jurisdiction over The second division was and is still called the Chancery division. It had jurisdiction over trust, over contention probates and other matters.trust, over contention probates and other matters.The third division was also at first three fold, and was after reduce to one : family,The third division was also at first three fold, and was after reduce to one : family, probate and admiralty. It progressively became the family court. Through this Judicature probate and admiralty. It progressively became the family court. Through this Judicature

Act, the ecclesiastical courts became lay courts;Act, the ecclesiastical courts became lay courts;

The procedure was also simplified (1834 : uniformity of procedure Act). Replacing allThe procedure was also simplified (1834 : uniformity of procedure Act). Replacing all

the writs to initiate an action were replaced by a single writ, the writ of summons.the writs to initiate an action were replaced by a single writ, the writ of summons.



Similarly, pleadings had been very complex business. The litigants had to join issue, theySimilarly, pleadings had been very complex business. The litigants had to join issue, they

had to reach a .. of issue. The y had to come to a single question around which their had to reach a .. of issue. The y had to come to a single question around which their conflict resolved.conflict resolved.

Gradually this system was dissolved (from as soon as the beginning of 18Gradually this system was dissolved (from as soon as the beginning of 18thth century). Itcentury). It

gradually became less formal. From 1705, parties were given the right of doublegradually became less formal. From 1705, parties were given the right of double

pleading, or laternative pleadings. The right for the parties to present 2 issues (2 pleading, or laternative pleadings. The right for the parties to present 2 issues (2 questions instead of 1).questions instead of 1).The other change concerned jury trial ,which has been characteristic of common lawThe other change concerned jury trial ,which has been characteristic of common law

courts. It was part of the popularity of common law courts, but also of their courts. It was part of the popularity of common law courts, but also of their unpopularityunpopularity

((briberybribery).).

By the end of 19By the end of 19thth, a jury trial in civil matters was only 50 % of the cases. Today jury, a jury trial in civil matters was only 50 % of the cases. Today jury

trial for civil cases are exceptional.trial for civil cases are exceptional. New courts of appeals were instituted, on the model of ecclesiastical courts. New courts of appeals were instituted, on the model of ecclesiastical courts. JJUDICATUREUDICATURE AACTCT instituted a Civil Court of Appeal for all its divisions (before, each court had its owninstituted a Civil Court of Appeal for all its divisions (before, each court had its own

rules).rules).The status of House of Lors had had jurisdiction as the ultimate court of appeal; But thisThe status of House of Lors had had jurisdiction as the ultimate court of appeal; But this was a constitutional anomaly from theh theory of separation of powers. It took more thantwas a constitutional anomaly from theh theory of separation of powers. It took more thant

a century to change.a century to change.In 1873-1875, there were motions for abolishing the House of Lords as a court of appeal.In 1873-1875, there were motions for abolishing the House of Lords as a court of appeal.

But by 1875 when the final act was voted, it was decided that a specialised committeeBut by 1875 when the final act was voted, it was decided that a specialised committee would become the highest court of appeal, the judicial comitte of the House of Lords.would become the highest court of appeal, the judicial comitte of the House of Lords.

This judicial committee would be composed of life peers (no hereditary peers), andThis judicial committee would be composed of life peers (no hereditary peers), and

would be called lords of appeal in ordinary. Shortly this title will change. This courtwould be called lords of appeal in ordinary. Shortly this title will change. This court continued to exist but under a modified form. Judicial Comitee became the highest courtcontinued to exist but under a modified form. Judicial Comitee became the highest court

for the whole United Kingdom. Ti was through this court and ists 12 Law Lords, that thefor the whole United Kingdom. Ti was through this court and ists 12 Law Lords, that the

law of England, Wales, Ireland and Scotland was unified. The court has jurisdiction over law of England, Wales, Ireland and Scotland was unified. The court has jurisdiction over criminal and civil law, except for the case of Scotland.criminal and civil law, except for the case of Scotland.The Privy Council, emanation of the Curia Regis, was also recognised has having anThe Privy Council, emanation of the Curia Regis, was also recognised has having an

appellate function, as the judicial committee of the Privy Council. It was the highest courtappellate function, as the judicial committee of the Privy Council. It was the highest court of appeal for the Britsih empire, and after that for the Commonwealth.of appeal for the Britsih empire, and after that for the Commonwealth.Recenlty, new Zealand has refuse to recognise the privy Council as its supreme court (asRecenlty, new Zealand has refuse to recognise the privy Council as its supreme court (as

had Austalia before)had Austalia before)In 1907, the Court of Appeal was given “competence” for criminal cases.In 1907, the Court of Appeal was given “competence” for criminal cases.The Supreme Court of Judicature, including Court of Appeal and Hight Court of Justice,The Supreme Court of Judicature, including Court of Appeal and Hight Court of Justice,

had appellate jurisdiction from lower courts.had appellate jurisdiction from lower courts.Cases can lie an appeal from the lower civil courts : county courts (instituted in ..46). InCases can lie an appeal from the lower civil courts : county courts (instituted in ..46). In case of an appeal from the lower courts, appeals can lie to the High Court of Jusice.case of an appeal from the lower courts, appeals can lie to the High Court of Jusice.

Similarly appeals from the lower criminal courts (magistrates’s court) cans lie to theSimilarly appeals from the lower criminal courts (magistrates’s court) cans lie to the

Queen’s bench division. A case can be heard 4 times.Queen’s bench division. A case can be heard 4 times.Appeals to upper cours can only be on matters of law : appeals on case stated. The courtsAppeals to upper cours can only be on matters of law : appeals on case stated. The courts

only examines if the law has been correctly applied.only examines if the law has been correctly applied.All these courts, Supreme Court of judicature and its parts, were housed in 1882 in theAll these courts, Supreme Court of judicature and its parts, were housed in 1882 in the

same building, specially constructed for theses courts, situated in the Strand (“la grève”).same building, specially constructed for theses courts, situated in the Strand (“la grève”).In this majot reform, there has been a prevailing influence of the Courst of Equity. TheIn this majot reform, there has been a prevailing influence of the Courst of Equity. The

head of the Supremer Court of Judiciature, was the head of the Court of Chancelor.head of the Supremer Court of Judiciature, was the head of the Court of Chancelor.Like the cours of Chancery, Supreme Court has no recourses to jury.Like the cours of Chancery, Supreme Court has no recourses to jury.



Act of 1971. before, regional cases were handled by assizes. The act abolished the assizesAct of 1971. before, regional cases were handled by assizes. The act abolished the assizes

case. They were replaced by the crown courts, they are located all around the country.case. They were replaced by the crown courts, they are located all around the country. There a 78 of thoses centers, organised as first tier, second tier or third tier crown courtThere a 78 of thoses centers, organised as first tier, second tier or third tier crown court

center. This degree depends on the jurisdiction on specific offences (“infractions”).center. This degree depends on the jurisdiction on specific offences (“infractions”).Cirminal : crown courts ->Cirminal : crown courts ->

Civil : assizes were also abolished. Provincial center were also created (also 78 centers).Civil : assizes were also abolished. Provincial center were also created (also 78 centers). For smaller cases, there are 233 county courts all over England and Wales. There areFor smaller cases, there are 233 county courts all over England and Wales. There are

30.000 (??) magistrates courts.30.000 (??) magistrates courts.Long after the old county courts (shire courts…) were…. Abolished by theLong after the old county courts (shire courts…) were…. Abolished by the Administration Act of 1977. Thoses small courts tended to decide cases in accordanceAdministration Act of 1977. Thoses small courts tended to decide cases in accordance

with the Royal Courst decisions. What we see developing in the course of the century iswith the Royal Courst decisions. What we see developing in the course of the century is

the law developed by the Upper Courts as a form of constitution. The lower courts feltthe law developed by the Upper Courts as a form of constitution. The lower courts felt that it was preferable for them to solve case in accordance with the rules of Common Lawthat it was preferable for them to solve case in accordance with the rules of Common Law

et Equity rules decided by the upper courts : Common law and aquity became in effectet Equity rules decided by the upper courts : Common law and aquity became in effect

the law of England and Wales.the law of England and Wales.The courts Act of 2003 replace the Supreme Court of Judicature by Her Majesty’s CourtThe courts Act of 2003 replace the Supreme Court of Judicature by Her Majesty’s Court

Service (see web site). It is in the process of being made responsible for theService (see web site). It is in the process of being made responsible for the administration of jutice for appeal, higher courts, county courts and magistrates courts.administration of jutice for appeal, higher courts, county courts and magistrates courts.This reforms claims as an advantage that it is the first time that a single service for theThis reforms claims as an advantage that it is the first time that a single service for the administration of the upper and all the lower courts. It unifies the administration of theadministration of the upper and all the lower courts. It unifies the administration of the

whole system of courts which thereby unified for the first time.whole system of courts which thereby unified for the first time.2001 Constituional reform Act. Following this, when it is fully operative, the judicial2001 Constituional reform Act. Following this, when it is fully operative, the judicial comitee of the House of Lords will disappear. Instead there will be a Supreme Court.comitee of the House of Lords will disappear. Instead there will be a Supreme Court.The Supreme Court will now be completely separate from the House of Lords, bothThe Supreme Court will now be completely separate from the House of Lords, both

institutionally but also physically, in its own separate building :The old Guild Hall (atinstitutionally but also physically, in its own separate building :The old Guild Hall (at present being restored). The purpose of this major reform was to make Biritsh institutions present being restored). The purpose of this major reform was to make Biritsh institutions

more compatible with instituions of other European coutrnies.more compatible with instituions of other European coutrnies.But the monarchy system can be considered as fundamently incompatible with the rulesBut the monarchy system can be considered as fundamently incompatible with the rules

of democracy as the other 2 power are virtually inseparable.of democracy as the other 2 power are virtually inseparable.

Hierarchy of lawsHierarchy of lawsInternational sources > Statute law > Equity > Common lawInternational sources > Statute law > Equity > Common law

Statute lawStatute law

Statute law : beware : no immediate relations with the courts. Also called statutory law.Statute law : beware : no immediate relations with the courts. Also called statutory law.Statute law is made up of Statute law is made up of Acts of ParliamentActs of Parliament..ParliamentParliament has come to be responsible for the making of laws which in the English legalhas come to be responsible for the making of laws which in the English legal

system have the greatest force if one excepts since 1972, European Law.system have the greatest force if one excepts since 1972, European Law.It is Parliament which transformsIt is Parliament which transforms bills bills (( projet de loi projet de loi) into) into actsacts ((loislois). This transformation). This transformation

is calledis called enactmentenactment ((to enactto enact :: to transform into an act to transform into an act ).).This source of law considered nationally is theThis source of law considered nationally is the highest source of the law in Englandhighest source of the law in England. It. It prevails over case law, but this prevails over case law, but this has to be qualifiedhas to be qualified (“(“appelle des nuancesappelle des nuances”).”).British English: Government means the executiveBritish English: Government means the executiveAmerican English: Government means all the branches of power (MAJOR American English: Government means all the branches of power (MAJOR



DIFFERENCE)DIFFERENCE)

Chapter 1 : Parliament and the peopleChapter 1 : Parliament and the people

One of the striking features of English institutional history is continuityOne of the striking features of English institutional history is continuity. Here again there. Here again there have been revolutions in a sense, but the predominant feature is continuity and constanthave been revolutions in a sense, but the predominant feature is continuity and constant

reference to tradition.reference to tradition.ParliamentParliament began to remerge as from the began to remerge as from the 13th century13th century. In the course of that history,. In the course of that history, gradually and then more and more quickly, the upper house became the less powerfulgradually and then more and more quickly, the upper house became the less powerful

house.house. Gradually the House of Commons rose and became predominantGradually the House of Commons rose and became predominant..

Section 1 : Institution of ParliamentSection 1 : Institution of Parliament

TheThe Curia RegisCuria Regis, which had all powers, rather comparable to the, which had all powers, rather comparable to the Witan MootWitan Moot(“Court of (“Court of the wise men”), had devolved its judicial power to the Royal Courts.the wise men”), had devolved its judicial power to the Royal Courts.SimilarlySimilarly the legislative powers of the Curia Regis became devolved to a specializedthe legislative powers of the Curia Regis became devolved to a specialized

institution : Parliamentinstitution : Parliament..

InIn MMAGNAAGNA CCARTAARTA (Great Charter) was a document that the barons obtained from the King(Great Charter) was a document that the barons obtained from the King when the balance of power happened to be in favour of the barons.when the balance of power happened to be in favour of the barons. MMAGNAAGNA CCARTAARTA was thewas the

outcome of a conflict between the King and some barons.outcome of a conflict between the King and some barons. MMAGNAGNA CA CARTAARTA is essentiallyis essentially

concerned with the fair administration of justice. The barons required the King toconcerned with the fair administration of justice. The barons required the King to acknowledge certain rights. Among those, foremost, was theacknowledge certain rights. Among those, foremost, was the right of due process of lawright of due process of law

(“(“droit à un process equitabledroit à un process equitable,, à un procès qui suit la procédureà un procès qui suit la procédure”). The idea that”). The idea that judgment must follow procedure judgment must follow procedure..12651265 is the more frequent date used as the origin of the history of is the more frequent date used as the origin of the history of ParliamentParliament. In 1265. In 1265

Simon de MontfortSimon de Montfort instituted a temporary parliament, composed of ecclesiastics andinstituted a temporary parliament, composed of ecclesiastics and

peers, and on the other sites knights of the shires and town burgesses (representative of peers, and on the other sites knights of the shires and town burgesses (representative of the towns). Here we have a prototype. The 2 chambers did not exist at the time. Butthe towns). Here we have a prototype. The 2 chambers did not exist at the time. But

representations at the time show that knights and burgesses were kneeling. It is therepresentations at the time show that knights and burgesses were kneeling. It is the descendant of those kneeling figures which dominate.descendant of those kneeling figures which dominate.InIn 12951295, The Model Parliament: first assembly which really looked like the actual, The Model Parliament: first assembly which really looked like the actual Parliament. Parliament summoned byParliament. Parliament summoned by Edward 1stEdward 1st. 2 knights from each shire, 2 burgesses. 2 knights from each shire, 2 burgesses

from each town (burrough), 2 citizend of each city.from each town (burrough), 2 citizend of each city.Later, the Parliament was divided into 2 chambers : one hand, ecclesiastics and peers,Later, the Parliament was divided into 2 chambers : one hand, ecclesiastics and peers, other hand , knights,other hand , knights,In ???, first Parliament were the Commons wereIn ???, first Parliament were the Commons wereInIn 13621362,, ParliamentParliament was acknowledged to havingwas acknowledged to having a right to decide taxationa right to decide taxation. Parliament. Parliament must give its ascent to all lay (“laic”) taxation.must give its ascent to all lay (“laic”) taxation.InIn 16211621 (??), in the protestation of (??), in the protestation of 16211621, this remarkable statement was made and, this remarkable statement was made and

acknowledged by the King, that Parliament had “the ancient and undoubtful right toacknowledged by the King, that Parliament had “the ancient and undoubtful right to

debate any subject”. We have members declaring that they always had the right to discussdebate any subject”. We have members declaring that they always had the right to discuss any subject. Inany subject. In

This was the second revolution, after was calledThis was the second revolution, after was called the Civil War the Civil War , which at the beginning of , which at the beginning of

1717thth century, had opposed royalists..; ended in 1649 ended with the execution of century, had opposed royalists..; ended in 1649 ended with the execution of CharlesCharles

1st1st. This was not an accidental killing; it was a legal execution following the judgment of . This was not an accidental killing; it was a legal execution following the judgment of

the King by Parliament. Parliament had enough power to consider having jurisdictionthe King by Parliament. Parliament had enough power to consider having jurisdiction



over the King, that the king was …over the King, that the king was …Charles 1stCharles 1st, at the height of absolute monarchy, the King was retired and executed. It was, at the height of absolute monarchy, the King was retired and executed. It was the date of first of only regicide in England.the date of first of only regicide in England.At the time, England, Wales and Scotland became a republic for 11 years, under theAt the time, England, Wales and Scotland became a republic for 11 years, under the

Government of Government of Oliver CromwellOliver Cromwell and the Parliament. This republic was called theand the Parliament. This republic was called the

CommonwealthCommonwealth..After the death of After the death of Oliver CromwellOliver Cromwell, Parliament decided to restore monarchy, and asked, Parliament decided to restore monarchy, and asked

Charles 2ndCharles 2nd, which was in France at the time, to come back to England and become King, which was in France at the time, to come back to England and become King

with a number of restrictions : thewith a number of restrictions : the beginning of constitutional monarchy beginning of constitutional monarchy..1688-16891688-1689 : the: the Glorious RevolutionGlorious RevolutionThose limitations became very clear when arms were taken againstThose limitations became very clear when arms were taken against James 2ndJames 2nd. Glorious. Glorious

revolution because it was relatively bloodless. The outcome of the revolution was the Billrevolution because it was relatively bloodless. The outcome of the revolution was the Bill of Rights. A very important moment in the history of Parliament. The sovereignty of of Rights. A very important moment in the history of Parliament. The sovereignty of

Parliament was isntituded. It declared that parliament was the maker of law, that is wasParliament was isntituded. It declared that parliament was the maker of law, that is was

sovereign to make the law.sovereign to make the law.One of the major provisions (“disposition”) of One of the major provisions (“disposition”) of BBILLILL OFOF R R IGHTSIGHTS was that Parliamentwas that Parliament

henceforth Parliament should be empowered with legislativehenceforth Parliament should be empowered with legislative sovereigntysovereignty. It is at this. It is at this moment that legislative powers of Parliament were instituted constitutionally.moment that legislative powers of Parliament were instituted constitutionally.In 1681, just before, the last Parliament outside of London was held.In 1681, just before, the last Parliament outside of London was held.In 1694, there was the Triannel(?) Act, according to which Parliament was to meet atIn 1694, there was the Triannel(?) Act, according to which Parliament was to meet at

least every 3 years, following which the longest time between 2 elections was to be 3least every 3 years, following which the longest time between 2 elections was to be 3

years(1716 to 7 years, and in 1911, 5 years at the most between general elections).years(1716 to 7 years, and in 1911, 5 years at the most between general elections).

Section 2 : the House of CommonsSection 2 : the House of Commons

House of Commons is elected.House of Commons is elected.The House of Commons wasThe House of Commons was originallyoriginally the lower house of Parliament, as opposed to thethe lower house of Parliament, as opposed to the

House of Lords, made out of ecclesiastic and lay lords.House of Lords, made out of ecclesiastic and lay lords.

In 1407In 1407,, Henry 4thHenry 4th had acknowledged that legislation regarding taxes should originate inhad acknowledged that legislation regarding taxes should originate in the commons (lay taxes had to have the ascent of the Commons): this became athe commons (lay taxes had to have the ascent of the Commons): this became a

conventionconvention (many things in UK are the fruit of conventions – (many things in UK are the fruit of conventions – habitual ways of doing habitual ways of doing

thingsthings). This is an important date, because in). This is an important date, because in 19111911 this decision made bythis decision made by Henry 4thHenry 4th waswas

refered to diminish the power of House of Lords, when House of Lords tried to veto arefered to diminish the power of House of Lords, when House of Lords tried to veto a

money bill (“loi de finance”). In doing this, it violated a convention, an unwritten law.money bill (“loi de finance”). In doing this, it violated a convention, an unwritten law.

Immediate reaction of the Commons, which force the convention to become written inImmediate reaction of the Commons, which force the convention to become written in the form of legislation.the form of legislation.InIn 14141414, the 2 houses were recognised has having the same powers to legislate. They, the 2 houses were recognised has having the same powers to legislate. They

were recognised as being equal. In 1911, following a long conflict, the Parliament Actwere recognised as being equal. In 1911, following a long conflict, the Parliament Act was voted.was voted.

A convention had been established since 1907 that the House of Commons prevailed over A convention had been established since 1907 that the House of Commons prevailed over legislation concerning taxes (over Money Bills).legislation concerning taxes (over Money Bills).InIn 19111911 Government wanted to institute numerous social reforms. The GovernmentGovernment wanted to institute numerous social reforms. The Government

introduced a bill requiring financing in the House of Commons. The House of Commonsintroduced a bill requiring financing in the House of Commons. The House of Commons

voted the Bills. It then went to the House of Lords. House of Lords vetoed the Bill,voted the Bills. It then went to the House of Lords. House of Lords vetoed the Bill, preventing the Government from initiating its social reforms. From 1907 (?), the preventing the Government from initiating its social reforms. From 1907 (?), the

convention that House of Commons prevailed. The House of Lord by vetoing violated theconvention that House of Commons prevailed. The House of Lord by vetoing violated the

convention.convention.



Through the parliament act 1911, the power of House of Lords over money bill wasThrough the parliament act 1911, the power of House of Lords over money bill was

completely diminished. The House of Lords could only delay an enactment. Verycompletely diminished. The House of Lords could only delay an enactment. Very important date in the fall of House of Lordsimportant date in the fall of House of LordsIn 1949In 1949, in a similar context, after WWII, when the government started important reforms, in a similar context, after WWII, when the government started important reforms

(in particular building of NHS). The(in particular building of NHS). The PPARLIAMENTARLIAMENT AACTCT 19491949 was voted, which created newwas voted, which created new

peers (the life peers). This Act provided that the peers (the life peers). This Act provided that the House of Commons could no longer beHouse of Commons could no longer be prevented by House of Lords to enact any public bill. prevented by House of Lords to enact any public bill.

26 November 200726 November 2007Current systemCurrent system

646 constituencies646 constituencies

First pass the post system : single roundFirst pass the post system : single round

Problems of the system: does not reflect the majorityProblems of the system: does not reflect the majority

2 main political parties: Conservative (Tories), Labour party and third big one:2 main political parties: Conservative (Tories), Labour party and third big one: Liberal party (the Whigs)Liberal party (the Whigs)

Prime Minister can choose the time of the general elections (max 5 years)Prime Minister can choose the time of the general elections (max 5 years)

History of voteHistory of vote

Originally, only land owners could voteOriginally, only land owners could voteDuring 19th century more and more citizens got the right to vote (During 19th century more and more citizens got the right to vote (CCATHOLICATHOLIC EMANCIPATIONEMANCIPATION ACTACT,, JJEWSEWS RELIEFRELIEF ACTACT, The 3, The 3 RREFORMEFORM AACTSCTS), women in 1928), women in 1928

Main history stepsMain history steps

19991999: Acts of Devolution: Acts of Devolution

20052005: Constitution Reform Act: Constitution Reform Act

House of Lords : loses its power through historyHouse of Lords : loses its power through history

19111911 parliament act : no more vetoing powerparliament act : no more vetoing power

19491949 : no more vetoing power for all public bills: no more vetoing power for all public bills

19581958 : introduction of Life Peers: introduction of Life Peers

Before 2005Before 2005 : Lord Spiritual, Lords temporal (Hereditary Peers, Life Peers), Law: Lord Spiritual, Lords temporal (Hereditary Peers, Life Peers), Law

LordsLords

20052005 : 92 Lords (selected by PM, Queen and a commission), no more hereditary: 92 Lords (selected by PM, Queen and a commission), no more hereditary

peers, Law Lords become a distinct Supreme Courtpeers, Law Lords become a distinct Supreme Court

The electionsThe elections

Who can voteWho can vote

Following the reformation, Catholics were prohibited from participating in the electionsFollowing the reformation, Catholics were prohibited from participating in the elections

of Parliament, or become members of Parliament (MPs). This was untilof Parliament, or become members of Parliament (MPs). This was until 18291829, through the, through the CCATHOLICATHOLIC EMANCIPATIONEMANCIPATION ACTACT ..Originally, to have the right to vote, one had to be a land owner Originally, to have the right to vote, one had to be a land owner . It is only gradually in the. It is only gradually in the

course of course of 19th century19th century that the right to vote became separate from an interest in land.that the right to vote became separate from an interest in land.This old system had the strange effect thatThis old system had the strange effect that if one had land in several parts, one could voteif one had land in several parts, one could vote

several times.several times.



InIn 18321832 following the influence of thefollowing the influence of the French RevolutionFrench Revolution, Parliament voted the, Parliament voted the R R EFORMEFORM ACTACT , which resulted in the, which resulted in the United KingdomUnited Kingdom in the rights to vote for 20 % (maximumin the rights to vote for 20 % (maximum estimation) of the adult male population. Before this act, a very small percentage of theestimation) of the adult male population. Before this act, a very small percentage of the

population was allowed to vote. Thus this act is a major step. population was allowed to vote. Thus this act is a major step.InIn 18581858, another religious group was allowed to vote: the Jews, through the, another religious group was allowed to vote: the Jews, through the JJEWSEWS R R ELIEFELIEF

AACTCT ..InIn 18671867, the, the SSECONDECOND R R EFORMEFORM AACTCT

InIn 18841884, the, the TTHIRDHIRD R R EFORMEFORM AACTCT

InIn 19181918, the, the FFOURTHOURTH R R EFORMEFORM AACTCT brought the electorate from 8 million to 24 million, and brought the electorate from 8 million to 24 million, and allowed women to vote for the first time (women could vote from the age of 30, menallowed women to vote for the first time (women could vote from the age of 30, men

could vote from 21).could vote from 21).In 1928In 1928,, EEQUALQUAL FFRANCHISERANCHISE AACTCT , women were allowed to vote from 21., women were allowed to vote from 21.19691969 : teenagers in their last year were also given the right to vote.: teenagers in their last year were also given the right to vote.Today, you do not need to be a land owner, you do not need to be 21, you do not need toToday, you do not need to be a land owner, you do not need to be 21, you do not need to

be a man. be a man.The Parliament was a parliament for England, Wales, Scotland and Northern Ireland.The Parliament was a parliament for England, Wales, Scotland and Northern Ireland.

Following theFollowing the AACTSCTS

OFOF

DDEVOLUTIONEVOLUTION

, in, in 19991999, which have instituted assemblies in, which have instituted assemblies in WalesWales,, ScotlandScotland andand Northern Ireland Northern Ireland, Parliament remains the Parliament for , Parliament remains the Parliament for United kindgdomUnited kindgdom..

However if one is elected in the assembly, one loses the right to be a member of However if one is elected in the assembly, one loses the right to be a member of Parliament.Parliament.

The current systemThe current system

The monarch summons and dissolves Parliament. The monarch dissolves at most after 5The monarch summons and dissolves Parliament. The monarch dissolves at most after 5

years. But she must after that summons a new Parliament, through a general election.years. But she must after that summons a new Parliament, through a general election.The country is divided into constituencies. There are in England,The country is divided into constituencies. There are in England, WalesWales,, ScotlandScotland,, Northern Ireland Northern Ireland 646 constituencies646 constituencies. Anyone can run, as long as he is 18 and has. Anyone can run, as long as he is 18 and has

acquired the ascent of 10 parliamentary electors and deposited 500 £, and he must be aacquired the ascent of 10 parliamentary electors and deposited 500 £, and he must be a

British or Commonwealth citizen. Most candidates are members of a political party.British or Commonwealth citizen. Most candidates are members of a political party.The major political parties have been sinceThe major political parties have been since 17th century17th century, the, the Conservative PartyConservative Party (the(the

Tories), theTories), the Liberal partyLiberal party (the Whigs) and since the end of 19(the Whigs) and since the end of 19thth century (originallycentury (originally

associated with the trade unions), theassociated with the trade unions), the Labour partyLabour party..There are of course other parties, but the structure of political life in England has a …. ToThere are of course other parties, but the structure of political life in England has a …. To

be bipartite. be bipartite.The dissolution of Parliament decision is in fact made by the Prime Minister. The QueenThe dissolution of Parliament decision is in fact made by the Prime Minister. The Queen

dissolves on the advice of the Prime Minister. The Prime Minister can make this decisiondissolves on the advice of the Prime Minister. The Prime Minister can make this decision when he wants.when he wants. This gives him an immense advantage to choose a favourable time for theThis gives him an immense advantage to choose a favourable time for the

elections.elections.There are several candidates in each constituency. In each constituency, voters select oneThere are several candidates in each constituency. In each constituency, voters select one

candidate.candidate. There is only one roundThere is only one round. The winner is the one who gets the most votes. This. The winner is the one who gets the most votes. This is called the “is called the “first past the post systemfirst past the post system”. It comes from horse racing.”. It comes from horse racing.This can result in a rather strange situation: one candidate can obtain with a very smallThis can result in a rather strange situation: one candidate can obtain with a very small difference in one constituency. There are times when the numbers of seats isdifference in one constituency. There are times when the numbers of seats is

proportionally much greater than the number of votes. proportionally much greater than the number of votes. The number of seats does noThe number of seats does no

necessarily reflect the number of total votes obtained by that partynecessarily reflect the number of total votes obtained by that party. This means that. This means that sometimes that the country is not run by a party which represents the majority. Thesometimes that the country is not run by a party which represents the majority. The

voting system has often been criticised.voting system has often been criticised.



Once a member of Parliament has been elected, he joins theOnce a member of Parliament has been elected, he joins the House of CommonsHouse of Commons. The HC. The HC

is physically built on this bipartite system, with seats on 2 sides of the room. It is ais physically built on this bipartite system, with seats on 2 sides of the room. It is a system based on an adversarial setup, with majority and opposition facing each other.system based on an adversarial setup, with majority and opposition facing each other.In the House of Commons, there are a number of officers.In the House of Commons, there are a number of officers.TheThe Speaker Speaker is the person who chairs the debateis the person who chairs the debate

There is also aThere is also a Clerk of the HouseClerk of the House, who advises the Speaker and the MPs on the rules of , who advises the Speaker and the MPs on the rules of procedure in House of Commons. procedure in House of Commons.Cross-benchersCross-benchers are those who are not members of any side.are those who are not members of any side.Some members of the majority party are also members of the Government. SomeSome members of the majority party are also members of the Government. Some members of the opposition are members of the shadow cabinet.members of the opposition are members of the shadow cabinet.

WhenWhen ParliamentParliament emerged, its powers were not clearly defined.emerged, its powers were not clearly defined. In those remote timesIn those remote times thethe modern distinction between executive, legislative and judicial were not as clear as it ismodern distinction between executive, legislative and judicial were not as clear as it is

today. Parliament had both judicative and legislative powers, and the 2 were nottoday. Parliament had both judicative and legislative powers, and the 2 were not

perceived as being different perceived as being differentIt isIt is between 1529 and 1536 between 1529 and 1536 in the Reformation parliament that legislation became morein the Reformation parliament that legislation became more

distinct todistinct to adjudicative powersadjudicative powers. Under . Under Henry VIIIthHenry VIIIth, wanting to divorce, launched the, wanting to divorce, launched the British reformationBritish reformation, took the head and English church and thus allowing him to divorce., took the head and English church and thus allowing him to divorce. Through this process, Parliament acquired it pre legislative powers.Through this process, Parliament acquired it pre legislative powers.Indeed the continuation of the legislative and adjudication went on, and ended untilIndeed the continuation of the legislative and adjudication went on, and ended until

recently (Constitutional reform under Tony Blair)recently (Constitutional reform under Tony Blair)The question of separation of powers is still actualThe question of separation of powers is still actual.. ParliamentParliament is the source of executiveis the source of executive power in England. power in England. Executive and legislative power are still rather confused todayExecutive and legislative power are still rather confused today..Parliament is considerer as the major source of law, the source of the prevailing law:Parliament is considerer as the major source of law, the source of the prevailing law:

statute law (the name statue reflects the original confusion between the powers).statute law (the name statue reflects the original confusion between the powers).Parliament transforms bills into acts, through a procedure called enactment.Parliament transforms bills into acts, through a procedure called enactment.

The House of LordsThe House of LordsIn the Commons, before the Reform bills, you had to be a land owner. Also you couldIn the Commons, before the Reform bills, you had to be a land owner. Also you could

vote several times. The right to be represented was very much associated with the owningvote several times. The right to be represented was very much associated with the owning of properties.of properties.Until 2005Until 2005, House of Lords was composed essentially of major land owners, the, House of Lords was composed essentially of major land owners, the

aristocracy; Thearistocracy; The House of lordsHouse of lords was composed of up to 1000 members, later reduced towas composed of up to 1000 members, later reduced to around 700 members.around 700 members.Before 2005Before 2005, the, the House of LordsHouse of Lords was made up of unelected members. Theses unelectedwas made up of unelected members. Theses unelected

members fell into 3 or 4 categories:members fell into 3 or 4 categories:-- the Lords temporal (linguistic anomaly, adjective should be first : this is a trace of the Lords temporal (linguistic anomaly, adjective should be first : this is a trace of

law French used until late 17law French used until late 17thth century).century).

oo Hereditary PeersHereditary Peers (“(“ seigneurs séculiers seigneurs séculiers”) (the original category). Peer ”) (the original category). Peer

(“(“ paire paire”) Careful of the word peers. Peer can also have the meaning as”) Careful of the word peers. Peer can also have the meaning as

“your equals”. But here it is in the sense of superior, member of “your equals”. But here it is in the sense of superior, member of

aristocracyaristocracy who by birth have the right to sit in the House of Lords.who by birth have the right to sit in the House of Lords.They were the majority in House of Lords, even inThey were the majority in House of Lords, even in 12651265, which then had, which then had

730 members. (Barons, lords,730 members. (Barons, lords, viscountsviscounts, dukes…). Their power had been, dukes…). Their power had been strongly diminished instrongly diminished in 19111911 by the by the PPARLIAMENTARLIAMENT AACTCT (only a delaying(only a delaying



power, no vetoing power) and power, no vetoing power) and 19491949 PPARLIAMENTARLIAMENT AACTCT AAMENDMENTMENDMENT whichwhich

extended the same rule to all public billsextended the same rule to all public billsBut the House of Lords continued to be a house of unelected members.But the House of Lords continued to be a house of unelected members.

This of course for people in France is shocking. Tony Blair’s worked inThis of course for people in France is shocking. Tony Blair’s worked in

that long tradition of the Labour Party. He brought to fruition this criticismthat long tradition of the Labour Party. He brought to fruition this criticism

by having the by having the CCONSTITUTIONALONSTITUTIONAL AACTCT in 2005.in 2005.oo Life peersLife peers : As part of this move, the: As part of this move, the LLIFEIFE PPEERAGESEERAGES AACTCT inin 19581958. This. This

resulted in the creation of a new category.resulted in the creation of a new category.Appointed by the Queen on advice of the Prime Minister, for merit. ThisAppointed by the Queen on advice of the Prime Minister, for merit. This

introduced an other element: the idea of merit. IE ;introduced an other element: the idea of merit. IE ; Margaret Thatcher Margaret Thatcher became a life peer after she lost the elections became a life peer after she lost the elections..

-- The Lords spiritualThe Lords spiritual:: Lords from the Church Lords from the Church. This also must seem very strange to. This also must seem very strange to

people in France that in a country long considered a model of democracy there people in France that in a country long considered a model of democracy there should be representative of the church. Not of any church, butshould be representative of the church. Not of any church, but representative of representative of

the Church of England, the official church of Englandthe Church of England, the official church of England..These peers are the archbishop or York, Canterbury, London, Westminster,These peers are the archbishop or York, Canterbury, London, Westminster,

Durham and 21 other diocesan bishops.Durham and 21 other diocesan bishops.-- TheThe Law LordsLaw Lords: the: the House of LordsHouse of Lords was thewas the highest court of appeal of the Unitedhighest court of appeal of the United

KingdomKingdom, through which the law of United kingdom despite its diversity was, through which the law of United kingdom despite its diversity was

unified.unified.InIn 18661866 the House of Lords had been threatened destruction but was maintainedthe House of Lords had been threatened destruction but was maintained

in 1866, thein 1866, the AAPPELLATEPPELLATE JJURISDICTIONURISDICTION AACTCT , which instituted instead of the House of , which instituted instead of the House of

Lords, theLords, the Judicial Committee of the House of LordsJudicial Committee of the House of Lords(spelling(spelling CommitteeCommittee) and) and nominated 12nominated 12 Lords of Appeal in OrdinaryLords of Appeal in Ordinary, to compose that court. These Lords of , to compose that court. These Lords of

Appeal in Ordinary were commonly calledAppeal in Ordinary were commonly called Law LordsLaw Lords. They retained their title. They retained their title

only during their life. But each one of them had by right a membership in Houseonly during their life. But each one of them had by right a membership in House of Lords.of Lords.

We have on one hand the House of Common out of which the GovernmentWe have on one hand the House of Common out of which the Government emanates. On the other we have the House of Lords which used to be made of emanates. On the other we have the House of Lords which used to be made of

aristocratic members, but was not only involved in legislation, but also involvedaristocratic members, but was not only involved in legislation, but also involved at the highest level in judicial powers.at the highest level in judicial powers.

But despite all these, England was a model of democracy in 17But despite all these, England was a model of democracy in 17thth century.century.

TheThe CCONSTITUTIONONSTITUTION R R EFORMEFORM AACTCT has brought a change in the composition of the House of has brought a change in the composition of the House of

Lords.Lords.Today, peers which used to be 700, have been reduced to 92. Peers no longer have a rightToday, peers which used to be 700, have been reduced to 92. Peers no longer have a right by birth to sit in the House of Lords. Lords spiritual continue to sit, Law Lords for the by birth to sit in the House of Lords. Lords spiritual continue to sit, Law Lords for the

time being but they will soon be members of the Supreme Court. The Supreme Court willtime being but they will soon be members of the Supreme Court. The Supreme Court will

move in a building next to Parliament. Justices will become exclusively members of themove in a building next to Parliament. Justices will become exclusively members of the newnew Supreme CourtSupreme Court..This act suppresses the right by birth, and replacement by a system through which theThis act suppresses the right by birth, and replacement by a system through which the

Queen on the advice of Prime Minister and a special commission selects people who canQueen on the advice of Prime Minister and a special commission selects people who can

be members. be members.

December, 4, 2007December, 4, 2007

Reminder on Common LawReminder on Common Law



Donahue vs. Stevenson : illustrates the development of case lawDonahue vs. Stevenson : illustrates the development of case lawMaterial facts : (material : synonym for relevant :Material facts : (material : synonym for relevant : pertinent pertinent ).).The judges have to select the facts which areThe judges have to select the facts which are legallylegally significant.significant.A poor woman, a woman without means, went to a café in Scotland, and was offered aA poor woman, a woman without means, went to a café in Scotland, and was offered a

bottle of ginger beer (stronger form of Canada Dry). The bottle was opaque. Ms. bottle of ginger beer (stronger form of Canada Dry). The bottle was opaque. Ms.

Donahue emptied the bottle to the last drop. The last drop was a dead snail (Donahue emptied the bottle to the last drop. The last drop was a dead snail (limacelimace). She). She suffered a nervous shock and caught gastro-enteritis. She decided to bring an actionsuffered a nervous shock and caught gastro-enteritis. She decided to bring an action

against whom ? But who should she sue ? She decided to bring a suite to sue. In Englishagainst whom ? But who should she sue ? She decided to bring a suite to sue. In English

law, action could have been brought by the owner of the café against the person who hadlaw, action could have been brought by the owner of the café against the person who had manufactured the beer, because there was a contractual relation between him and themanufactured the beer, because there was a contractual relation between him and the

provider. But as Ms. Donahue has not bought the beer which had been offered. provider. But as Ms. Donahue has not bought the beer which had been offered.

Nevertheless she brought an action against the manufacturer in a court in Scotland, which Nevertheless she brought an action against the manufacturer in a court in Scotland, which was in a different legal system. The initial court felt that this case could reach the highestwas in a different legal system. The initial court felt that this case could reach the highest

court and was very general, called at the time de Judicial Committee of the House of court and was very general, called at the time de Judicial Committee of the House of

Lords. To bring a case to this higher court, there must be a permission given by theLords. To bring a case to this higher court, there must be a permission given by the House of Lords, and it does this only if the case is of sufficient general importance. ThereHouse of Lords, and it does this only if the case is of sufficient general importance. There

are 12 Law Lords, the Law Lords deemed that this case was of general publicare 12 Law Lords, the Law Lords deemed that this case was of general public importance. Why ? Because the issue, the question in this case was the following : canimportance. Why ? Because the issue, the question in this case was the following : can

there be a duty of a manufacturer towards the ultimate consumer, even if there is nothere be a duty of a manufacturer towards the ultimate consumer, even if there is no contractual link between the 2 parties and even if there has been no fault on the part of contractual link between the 2 parties and even if there has been no fault on the part of

the manufacturer (there would have been a fault if the manufacturer had put he snailthe manufacturer (there would have been a fault if the manufacturer had put he snail

internationallyinternationally). Could there be a liability on the part of the manufacturer towards the). Could there be a liability on the part of the manufacturer towards the ultimate consumer. Before this case, most judge would have said no. Bu the majority of ultimate consumer. Before this case, most judge would have said no. Bu the majority of

the Justices held that there was a liability of the manufacturer towards the ultimatethe Justices held that there was a liability of the manufacturer towards the ultimate

consumer even if there was no contractual relationship and even if there was no faultconsumer even if there was no contractual relationship and even if there was no fault from the manufacturer.from the manufacturer.Each justice give his opinion on his own name. A majority of justices must concur, butEach justice give his opinion on his own name. A majority of justices must concur, but

only on the decision, but not necessarily on the reasons of the decision. Therefore theonly on the decision, but not necessarily on the reasons of the decision. Therefore the

reasons can be multiple, as multiple as the number of justices. Those reasons are calledreasons can be multiple, as multiple as the number of justices. Those reasons are called ratio decidendiratio decidendi. Those who do not agree with the majority decision are said to dissent.. Those who do not agree with the majority decision are said to dissent.

Their opinions are called dissenting opinions. Note that what the justice says is called anTheir opinions are called dissenting opinions. Note that what the justice says is called an

opinion.opinion.Before that case even the best informed lawyer would have said that there is no suchBefore that case even the best informed lawyer would have said that there is no such

liability. Yet the judges would say that this had always been the law of England. 2liability. Yet the judges would say that this had always been the law of England. 2

possible answers : possible answers :-- first answer : the declarative theory of common law according to which thefirst answer : the declarative theory of common law according to which the

justices declare what the common law is, but are subject to mistakes. In fact, in justices declare what the common law is, but are subject to mistakes. In fact, in

the course of history, they gradually discover what the Common law is, but it hasthe course of history, they gradually discover what the Common law is, but it has always been the same over the course of timealways been the same over the course of time

-- second answer : the justices create Common Law. This is called the creativesecond answer : the justices create Common Law. This is called the creative

theory.theory.

Chapter 2 : Parliament and the Government Chapter 2 : Parliament and the Government

Government has different meanings on the 2 sides of the Atlantic.Government has different meanings on the 2 sides of the Atlantic.StatesStates:: GovernmentGovernment meansmeans the 3 branches of power the 3 branches of power ..



To specifically designate the Government in the English sense, the term is theTo specifically designate the Government in the English sense, the term is the

AdministrationAdministrationUnited KingdomUnited Kingdom : the: the GovernmentGovernment refers only torefers only to the executivethe executive..The Government (UK) is synonym with the Administration (US).The Government (UK) is synonym with the Administration (US).

A brief historyA brief historyOriginally (a rather theorical origin) the monarch ruled through theOriginally (a rather theorical origin) the monarch ruled through the Curia RegisCuria Regis (The(The king’s Council) which was made up of earls, barons, bishops. This part of his councilking’s Council) which was made up of earls, barons, bishops. This part of his council

gradually became the House of Lords.gradually became the House of Lords.In course of history non noble members became members of the Curia Regis and later In course of history non noble members became members of the Curia Regis and later

became the House of Commons. became the House of Commons.The integrated powers of the Curia Regis came to be separated.The integrated powers of the Curia Regis came to be separated.

-- Legislative in the ParliamentLegislative in the Parliament-- Judicial to the Royal CourtsJudicial to the Royal Courts-- Executive power remaining in the hands to the King, and a part of the Curia RegisExecutive power remaining in the hands to the King, and a part of the Curia Regis

called thecalled the Privy CouncilPrivy Council..

The monarch continued to exercise powers, but also judicial and legislative through aThe monarch continued to exercise powers, but also judicial and legislative through a certain of councillor courts (i.e. : the star chamber)certain of councillor courts (i.e. : the star chamber)

The privy Council The privy Council

As from the 17th century, the Privy Council with the development of ConstitutionalAs from the 17th century, the Privy Council with the development of Constitutional

Monarchy lost most of its powers. But the Privy Council still exists, with diminishedMonarchy lost most of its powers. But the Privy Council still exists, with diminished

powers. powers.It issued orders in council, which are of 2 types.It issued orders in council, which are of 2 types.

-- In accordance with a royal prerogativeIn accordance with a royal prerogativeex: it is a royal prerogative to declare war. It is therefore through an order of ex: it is a royal prerogative to declare war. It is therefore through an order of Council that war is declared by United kingdomCouncil that war is declared by United kingdom

-- in accordance with a power granted by a statutein accordance with a power granted by a statute(12 min.)(12 min.)The Privy Council is also … to institute charter companies.The Privy Council is also … to institute charter companies.The Privy Council is also … for .. Ex: the General Medical Council.The Privy Council is also … for .. Ex: the General Medical Council.It is also responsible for the appointment of high sheriffs in England and Wales.It is also responsible for the appointment of high sheriffs in England and Wales.Part of the Privy Council constitutes the judicial committee of the Privy Council, which isPart of the Privy Council constitutes the judicial committee of the Privy Council, which is composed of the Law Lords (the same justices which sit in the House of Lords) which iscomposed of the Law Lords (the same justices which sit in the House of Lords) which is

the highest court of appeal for certain foreign British.the highest court of appeal for certain foreign British.It is also a court of appeal for ecclesiastical courts.It is also a court of appeal for ecclesiastical courts.And since 1998, it has been empowered with jurisdiction over devolution cases.And since 1998, it has been empowered with jurisdiction over devolution cases.The Judicial Committee presently sits in Downing Street, but will shortly the SupremeThe Judicial Committee presently sits in Downing Street, but will shortly the Supreme

Court in the restored Guild Hall.Court in the restored Guild Hall.Her Majesty’s Privy Council is composed of Privy Councillors, of which are the CabinetHer Majesty’s Privy Council is composed of Privy Councillors, of which are the Cabinet members are.members are.These Privy Councillors, have a title: the Right Honourable…These Privy Councillors, have a title: the Right Honourable…Privy Council meets regularly, and it is organised by the Privy Council office, the PCO.Privy Council meets regularly, and it is organised by the Privy Council office, the PCO.(17m30) see governmental websites(17m30) see governmental websites

On the 2On the 2ndnd April 2007, most of the functions of the Privy Council have been reallocatedApril 2007, most of the functions of the Privy Council have been reallocated



to 2 ministries:to 2 ministries:-- Concerning the judicial comm.Concerning the judicial comm.

The cabinet The cabinet

OfficiallyOfficially, the cabinet is still an emanation, an inner circle of the Privy Council., the cabinet is still an emanation, an inner circle of the Privy Council.The Cabinet began to emerge as a separate entity in the 17th and 18th century, when theThe Cabinet began to emerge as a separate entity in the 17th and 18th century, when the

Privy Council became too large to be efficient. It was first called the CabalPrivy Council became too large to be efficient. It was first called the Cabal (communicates a sense of suspicion).(communicates a sense of suspicion).The cabinet would meet and be presided by the monarch to make decisions.The cabinet would meet and be presided by the monarch to make decisions.(20 mn)(20 mn)

In the beginning of 18In the beginning of 18thth century, the ….century, the ….

The first Georges who ruled England at the time did not speak English. This resulted in aThe first Georges who ruled England at the time did not speak English. This resulted in a

habit, which was that the King not understanding what was said stopped to attend. Thishabit, which was that the King not understanding what was said stopped to attend. This

habit solidified into a convention which is that the Monarch is forbidden to attendhabit solidified into a convention which is that the Monarch is forbidden to attend Cabinet meetings, when in fact he was originally rather bored. If Queen ElisabethCabinet meetings, when in fact he was originally rather bored. If Queen Elisabeth

decided to impose her presence, the Government could impose a statute law to forbiddecided to impose her presence, the Government could impose a statute law to forbid

this.this.

GraduallyGradually in the course of 18in the course of 18thth century, it became the habit in the absence of the King,century, it became the habit in the absence of the King,

for one adviser to become morefor one adviser to become more prominentprominent that others. With the development of that others. With the development of

emancipation and right to vote, it became more obvious that the Cabinet should be madeemancipation and right to vote, it became more obvious that the Cabinet should be made

of the elected house of Parliament, the House of Commons (which became more andof the elected house of Parliament, the House of Commons (which became more and more representative of the people).more representative of the people).Gradually emerged this figure called the Prime Minister.Gradually emerged this figure called the Prime Minister.Today the Prime Minister is the leader of the party which has obtained the majority of theToday the Prime Minister is the leader of the party which has obtained the majority of the House of Commons through the general elections. The PM is more or less automaticallyHouse of Commons through the general elections. The PM is more or less automatically

the leader of the party which has won the election.the leader of the party which has won the election.Which means than the executive and legislative bodies in England are not separated. TheWhich means than the executive and legislative bodies in England are not separated. The

executive is an emanation of the legislative. Whoever is the head of the majority partyexecutive is an emanation of the legislative. Whoever is the head of the majority party becomes the Prime Minister. This is the fact, but not the theory. The theory is that the becomes the Prime Minister. This is the fact, but not the theory. The theory is that the

monarch chooses the Prime Minister (rather like the French President chooses the Primemonarch chooses the Prime Minister (rather like the French President chooses the Prime

Minister). But the monarch must choose the leader of the majority party.Minister). But the monarch must choose the leader of the majority party.The exception is when there is a hung parliament. A hung Parliament is where no partyThe exception is when there is a hung parliament. A hung Parliament is where no party

has a sufficient majority without coalescing, creating a coalition with another party. Thenhas a sufficient majority without coalescing, creating a coalition with another party. Then

the monarch has a more important word in designating the Prime Minister. Is itthe monarch has a more important word in designating the Prime Minister. Is it exceptional in the bipartite system? This is an advantage of theexceptional in the bipartite system? This is an advantage of the first past the post systemfirst past the post system..The Prime Minister is by convention the leader of the majority party.The Prime Minister is by convention the leader of the majority party.

The Prime Minister thus designated exercises all the powers which officially the monarchThe Prime Minister thus designated exercises all the powers which officially the monarch is empowered with. In other words, the Prime Minister today for at most 5 years, theis empowered with. In other words, the Prime Minister today for at most 5 years, the

Prime Minister is de facto, but not de jury, like a monarch. The Queen is the head of allPrime Minister is de facto, but not de jury, like a monarch. The Queen is the head of all

the armed forces (royal air force, royal navy, and royal army…) but all the decisions arethe armed forces (royal air force, royal navy, and royal army…) but all the decisions are

taken by the Prime Minister or the Minister of Defence. She is the source of all honours,taken by the Prime Minister or the Minister of Defence. She is the source of all honours, but in fact it is the Prime Minister which decides. The prerogative to make war of peace but in fact it is the Prime Minister which decides. The prerogative to make war of peace

is in fact exercised by the PM. Summoning or dissolving parliament…; is the same. Theis in fact exercised by the PM. Summoning or dissolving parliament…; is the same. The

monarch also has residual judicial powers (he can grant pardons), but in fact it is themonarch also has residual judicial powers (he can grant pardons), but in fact it is the



Secretary of the Home Office (Secretary of the Home Office (intérieur intérieur ) which decides whether the pardon should be) which decides whether the pardon should be

granted.granted.All the powers have been devolved to the Cabinet.All the powers have been devolved to the Cabinet.The powers of the Prime minister are powers which it acquires through his election byThe powers of the Prime minister are powers which it acquires through his election by

the people.the people.

There is also a web site on Prime Minister and Cabinet.There is also a web site on Prime Minister and Cabinet.December 11December 11

thth, 2007, 2007

In far away times, the King was assisted by a body o advisors which constituted the CourtIn far away times, the King was assisted by a body o advisors which constituted the Court

of the King (of the King (curia Regiscuria Regis), equivalent of the Anglo-Saxon Witan Moot.), equivalent of the Anglo-Saxon Witan Moot.This court devoted its powers to more specialised institutions. This was the case for theThis court devoted its powers to more specialised institutions. This was the case for the

judicial power to the Royal courts and Court of chancery. judicial power to the Royal courts and Court of chancery.

In the course of 17In the course of 17thth, it devoted executive to the Privy Council, which itself lost its power , it devoted executive to the Privy Council, which itself lost its power

to the Cabinet. The Cabinet was at first presided by the monarch. In the early 18to the Cabinet. The Cabinet was at first presided by the monarch. In the early 18thth

century, because the monarch’s mother tongue was German, a convention was setup thatcentury, because the monarch’s mother tongue was German, a convention was setup that

the monarch could not attend cabinet meeting. Cabinet meetings was presided by a figurethe monarch could not attend cabinet meeting. Cabinet meetings was presided by a figure

which emergent at the end of the 18which emergent at the end of the 18thth century.century. GraduallyGradually in the course of the 19in the course of the 19thth

century, its power rose. Gradually he became the officious monarch, a monarch for thecentury, its power rose. Gradually he became the officious monarch, a monarch for the

duration of his government.duration of his government.Thus one says that the monarch is the source of allThus one says that the monarch is the source of all honourhonour. All those who have a title of . All those who have a title of nobility owe it to the monarch.nobility owe it to the monarch.The monarch is the head of armies, signs treaties, summons and dissolves or proroguesThe monarch is the head of armies, signs treaties, summons and dissolves or prorogues

Parliament. The monarch is the fountain of justice.Parliament. The monarch is the fountain of justice.All these powers which are officially exercised by the monarch are in fact exercises byAll these powers which are officially exercised by the monarch are in fact exercises by

the Prime minister. The PM is an extremely powerful man. The Pm resides and hasthe Prime minister. The PM is an extremely powerful man. The Pm resides and has

resided for a long time in 10 Downing Streetresided for a long time in 10 Downing Street

The ministryThe ministry

The central organ of Government is the Cabinet.The central organ of Government is the Cabinet.It is composed of 15 to 25 members. They are the ministers of the most importantIt is composed of 15 to 25 members. They are the ministers of the most important

ministriesministries..The ministry (refers to the whole of the administration, all executive departmentsThe ministry (refers to the whole of the administration, all executive departments

together). It is only from the beginning of 20together). It is only from the beginning of 20thth century it was used in a specific sense.century it was used in a specific sense.

Usage is more to speak about departments. The ministry is sometimes referred to theUsage is more to speak about departments. The ministry is sometimes referred to the

White Hall (because many of these departments have their headquarters in the White HallWhite Hall (because many of these departments have their headquarters in the White Hall

Street.Street.The main departments:The main departments:

-- recently was used to be called the Lord Chancellor’s department was rebaptisedrecently was used to be called the Lord Chancellor’s department was rebaptised along the French tradition, the Ministry of Justice;along the French tradition, the Ministry of Justice;

-- department for culture, media and sportdepartment for culture, media and sport-- the Home Office, is the equivalent of “the Home Office, is the equivalent of “Ministère de l’intérieur Ministère de l’intérieur ””-- Foreign and Commonwealth OfficeForeign and Commonwealth Office-- Department for transportDepartment for transport-- Department for children, schools and familiesDepartment for children, schools and families-- Department for innovation, universities and skillsDepartment for innovation, universities and skills



-- …… of Businessof Business

-- …… of Health and rural affairsof Health and rural affairs-- Her Majesty’s treasuryHer Majesty’s treasury-- Northern Ireland office Northern Ireland office-- Wales officeWales office

-- Scotland officeScotland office-- Department for work and pensionsDepartment for work and pensions

-- …… for international developmentfor international development-- Ministry of defenceMinistry of defence

These departments have a dual head. A political head and a civil service head.These departments have a dual head. A political head and a civil service head.The political head of department usually has the title of Secretary of State (unlikeThe political head of department usually has the title of Secretary of State (unlike Secrétaire d’Etat Secrétaire d’Etat in France).in France).Home secretaryHome secretary ((ministère de l’intérieur ministère de l’intérieur ),), Foreign office secretaryForeign office secretary ((ministre des affairesministre des affaires

étrangèresétrangères))Under the secretary, there are the ministers (which usually are underneath the Secretary)Under the secretary, there are the ministers (which usually are underneath the Secretary)There are also Parliamentary under-secretary of state.There are also Parliamentary under-secretary of state.

Some have specific names: Lord of the Exchequer, Lord of the Treasury, LordSome have specific names: Lord of the Exchequer, Lord of the Treasury, Lord Chancellor (Chancellor (Garde des SceauxGarde des Sceaux).).The ministry and its different departments is also run by civil servants (The ministry and its different departments is also run by civil servants ( fonctionnaires fonctionnaires)) who belong to the civil service. They are headed in each department by a …. He has anwho belong to the civil service. They are headed in each department by a …. He has an

essential role. He knows the history of his department.essential role. He knows the history of his department.

Executive agenciesExecutive agencies

Working in collaboration or under a department, there are a number of executiveWorking in collaboration or under a department, there are a number of executive

agencies.agencies.Ex : Her Majesty’s Court service (a recent name)Ex : Her Majesty’s Court service (a recent name)Alos non departemental public bodies (NDPB) : National Health Sericce, nationalAlos non departemental public bodies (NDPB) : National Health Sericce, national

Broadcastign ServiceBroadcastign Service

Also : non ministerial departmentsAlso : non ministerial departmentsAs opposed to executive agencies and NDPB are named so to suggest their independenceAs opposed to executive agencies and NDPB are named so to suggest their independenceEx :Ex : the CPS : the Crown Prosecution Serivcethe CPS : the Crown Prosecution Serivce, which is responsible fot the decision to, which is responsible fot the decision to

prosecute, to bring an action in criminal cases (it is separate from the Home Office and prosecute, to bring an action in criminal cases (it is separate from the Home Office and

Ministry of Justice).Ministry of Justice).

DevolutionDevolution

Important issue in contemporary English politicsImportant issue in contemporary English politicsIt is used in the present context to refer to the fact that under the Blair GVT is has beenIt is used in the present context to refer to the fact that under the Blair GVT is has been decided that power that were previously exercised by central government should bedecided that power that were previously exercised by central government should be

henceforth should be exercised by institutions in Wales, Northern Ireland and Scotland.henceforth should be exercised by institutions in Wales, Northern Ireland and Scotland.A more general process that French “regionalisation”.A more general process that French “regionalisation”.Wales was incorporated in ????;Wales was incorporated in ????;Following the death of …, in 1706 James VI became King of Following the death of …, in 1706 James VI became King of In 1707, Act of Union: unification of ScotlandIn 1707, Act of Union: unification of Scotland



1800: Act of Union, United Kingdom1800: Act of Union, United KingdomThere has always been resistance to these unifications, in particular in Scotland andThere has always been resistance to these unifications, in particular in Scotland and Ireland.Ireland.In 1922, part of Ireland…In 1922, part of Ireland…In 1937: Irish republic; Ireland which is not a member of the Commonwealth.In 1937: Irish republic; Ireland which is not a member of the Commonwealth.

Under the Tony Blair governments, and following efforts to resolve the Irish conflict. InUnder the Tony Blair governments, and following efforts to resolve the Irish conflict. In 1998 the Belfast agreement, and then the Northern Ireland Act, devoted powers to the1998 the Belfast agreement, and then the Northern Ireland Act, devoted powers to the

Northern Ireland assembly and executive assembly. Northern Ireland assembly and executive assembly.Results were not immediate. It is only very recently following the historic encounter Results were not immediate. It is only very recently following the historic encounter between Ian Paisley (leader of the democratic unionist party, in favour of Northern between Ian Paisley (leader of the democratic unionist party, in favour of Northern

Ireland remaining in UK) and Jerry Adams (leader of Sinn Fein, in favour of Ireland remaining in UK) and Jerry Adams (leader of Sinn Fein, in favour of

independenceindependence), that devolution has seemed to become effective in 2007.), that devolution has seemed to become effective in 2007.Scotland similarly had a faction in favour of the independence of Scotland, ever sinceScotland similarly had a faction in favour of the independence of Scotland, ever since

1707. It is only recently that the Scotland Act, in 1998 has devolved legislative and1707. It is only recently that the Scotland Act, in 1998 has devolved legislative and

executive powers, creating Scotland Parliament and executive body, lead by the Firstexecutive powers, creating Scotland Parliament and executive body, lead by the First Minister with its cabinet, in what are called devolved areas (health, education, ruralMinister with its cabinet, in what are called devolved areas (health, education, rural

affairs, transport and justice).affairs, transport and justice).The assembly meets in Edinborough, in Holy ROOD (???).The assembly meets in Edinborough, in Holy ROOD (???).

The same goes for Wales. Wales was incorporated in early 16The same goes for Wales. Wales was incorporated in early 16thth century. But even incentury. But even in

Wales there had been tensions. A community defined the Welsh language and obtainedWales there had been tensions. A community defined the Welsh language and obtained

satisfaction.satisfaction.In 1979 there was the Wales referendum, and it turned out that a majority did not wantIn 1979 there was the Wales referendum, and it turned out that a majority did not want any form of independence. In 1997, there was another referendum.any form of independence. In 1997, there was another referendum. Following 1998Following 1998, the, the

Wales Assembly was setup, also with a first minister, for economic development, localWales Assembly was setup, also with a first minister, for economic development, local

government, education, health, social justice;..government, education, health, social justice;..Moreover, there is something else which a decentralising aspect, local governments.Moreover, there is something else which a decentralising aspect, local governments.For a long time, England has given powers to local governments (authorities which runFor a long time, England has given powers to local governments (authorities which run

the country locally employs 2 millions people- teachers, fire fighters…)the country locally employs 2 millions people- teachers, fire fighters…)Local government is directly in contact with governmental departments. In Scotland,Local government is directly in contact with governmental departments. In Scotland, Wales, Northern Ireland are more related to the devolved governments.Wales, Northern Ireland are more related to the devolved governments.

Chapter 3 : The making of statute law Chapter 3 : The making of statute law

The UK despite pressure groups that would like this to change does not have aThe UK despite pressure groups that would like this to change does not have a Constitution in the French or American sense. It does not have a single document whichConstitution in the French or American sense. It does not have a single document which

distributes power into 3 branches and institutes the organs that exercise those powers, butdistributes power into 3 branches and institutes the organs that exercise those powers, but is has a constitution in the non material sense, in so much as the powers are distributedis has a constitution in the non material sense, in so much as the powers are distributed and the organs are instituted, but in accordance with rules that have aand the organs are instituted, but in accordance with rules that have a varietyvariety of sources:of sources:

statute law, case law (common law and equity) and conventions (unwritten law).statute law, case law (common law and equity) and conventions (unwritten law).These rules divide and distribute power, institute the bodies which exercise them andThese rules divide and distribute power, institute the bodies which exercise them and provides for the way these bodies function. provides for the way these bodies function.



The doctrine of Parliamentary sovereigntyThe doctrine of Parliamentary sovereignty

It is probably the most important doctrine governing British institutions.It is probably the most important doctrine governing British institutions.It is a rule according to which Parliament is the supreme legislator, the supreme lawIt is a rule according to which Parliament is the supreme legislator, the supreme law

maker. This means that GVT is unlimited in its legislative powers. It can amend andmaker. This means that GVT is unlimited in its legislative powers. It can amend and

abrogate its own laws. This is not the case with case law (it can distinguish, but it canabrogate its own laws. This is not the case with case law (it can distinguish, but it can

officially not change).officially not change).This power is clearly incompatible with a Constitution in the French sense, because thenThis power is clearly incompatible with a Constitution in the French sense, because then

the powers of Parliament would be limited by that Constitution. Officially, the Parliamentthe powers of Parliament would be limited by that Constitution. Officially, the Parliament is unlimited. The laws that the British Parliament enacts prevail over any other rule of is unlimited. The laws that the British Parliament enacts prevail over any other rule of

law in the UK.law in the UK.There is no law, national or international, which prevails over Parliament laws.There is no law, national or international, which prevails over Parliament laws.

“ “The Parliament can do anything, except changing a man into a woman”The Parliament can do anything, except changing a man into a woman”There is no high law that can limit the powers of the English Parliament, except the voxThere is no high law that can limit the powers of the English Parliament, except the vox populi through the elections. The only limit is the voice of the people. populi through the elections. The only limit is the voice of the people.But some will say: what about European unions, international treaties.But some will say: what about European unions, international treaties.The power of the Parliament includes the power to limit its own powers. But doing so itThe power of the Parliament includes the power to limit its own powers. But doing so it

is a sign that it is the supreme law maker.is a sign that it is the supreme law maker.The British Parliament has limited its powers when it voted its membership to the EU. IsThe British Parliament has limited its powers when it voted its membership to the EU. Is

has accepted that EU legislation should prevail over UK legislation.has accepted that EU legislation should prevail over UK legislation.Is has accepted that is should follow directives and should implement their objectivesIs has accepted that is should follow directives and should implement their objectives through statute law. But it could also in the future decide to leave the EU.through statute law. But it could also in the future decide to leave the EU.Similarly, in 1998 the UK enacted the Human Rights Act. This also limits apparently theSimilarly, in 1998 the UK enacted the Human Rights Act. This also limits apparently the

powers of Parliament. But this act could be abrogated or amended. powers of Parliament. But this act could be abrogated or amended.The limitation does not come from the Constitution, it comes from Parliament itself.The limitation does not come from the Constitution, it comes from Parliament itself.Similarly UK parliament has voted in 1998 that some of its powers should be devolved toSimilarly UK parliament has voted in 1998 that some of its powers should be devolved to

the newly created assemblies. It has thereby limited its powers.the newly created assemblies. It has thereby limited its powers.This expression Parliamentary sovereignty, is a little bit misleading because most statueThis expression Parliamentary sovereignty, is a little bit misleading because most statue

law originates from the executive, in other words from the PM, the Cabinet and itslaw originates from the executive, in other words from the PM, the Cabinet and its ministers.ministers.But what is the government in the UK? It is an emanation of the Parliament. In fact, whatBut what is the government in the UK? It is an emanation of the Parliament. In fact, what appears to be an objection, self defeats itself; we can say there again to refute that secondappears to be an objection, self defeats itself; we can say there again to refute that second

objection,objection,The doctrine of parliament sovereignty gives a good account of how the BritishThe doctrine of parliament sovereignty gives a good account of how the British constitution worksconstitution works

BillsBills

In its restricted sense, bill means what French understand by a “In its restricted sense, bill means what French understand by a “ projet de loi projet de loi”. But it is”. But it is

sometimes used to mean the same thing as an act.sometimes used to mean the same thing as an act.There are different types of bills: public bills, private bills and hybrid bills (typical of There are different types of bills: public bills, private bills and hybrid bills (typical of

English classification: English love to propose classifications and show that they areEnglish classification: English love to propose classifications and show that they are

pragmatically valid, but not ontologically valid). And yet another category: private pragmatically valid, but not ontologically valid). And yet another category: private

members bill.members bill.What is the purpose of bills and statute law?What is the purpose of bills and statute law?In the French constitutional system, this seems completely stupid. In English system itIn the French constitutional system, this seems completely stupid. In English system it

has meaning because Parliament is not the only source of law. Much of the English law ishas meaning because Parliament is not the only source of law. Much of the English law is



judge made-law. judge made-law.Why has the English system needed Parliament to make statute law?Why has the English system needed Parliament to make statute law?The purpose of statute law isThe purpose of statute law is multifariousmultifarious::

-- To unify case law in certain domainsTo unify case law in certain domainsCase law develops case by case, and can give the impression of patchwork. It isCase law develops case by case, and can give the impression of patchwork. It is

rather difficult for lawyers to know what the law is in a particular domain. Ex: therather difficult for lawyers to know what the law is in a particular domain. Ex: the effect of mistake in contract law, still today, you have to consider hundreds of effect of mistake in contract law, still today, you have to consider hundreds of

cases. Once in while, from time to time, the Government feels it is useful to bringcases. Once in while, from time to time, the Government feels it is useful to bring

together all theses case into a single act, which has the effect of codifying thattogether all theses case into a single act, which has the effect of codifying that little domain of case law. Ex : in numerous cases had handed down regardinglittle domain of case law. Ex : in numerous cases had handed down regarding

contracts of sale of goods; At the end of 19contracts of sale of goods; At the end of 19thth century, Parliament voted a series of century, Parliament voted a series of

Sale of Goods acts. Or: case had developed regarding the use of unfair terms inSale of Goods acts. Or: case had developed regarding the use of unfair terms in contracts. Parliament voted the Unfair Contract Terms Act.contracts. Parliament voted the Unfair Contract Terms Act.however, statute law as a whole does not form a code as in Francehowever, statute law as a whole does not form a code as in France

-- To operate quick changes to the lawTo operate quick changes to the lawCase law is slow in its development. As slow as the judicial process. To change,Case law is slow in its development. As slow as the judicial process. To change,

there must be a case that can be distinguished. Parliament can change the lawthere must be a case that can be distinguished. Parliament can change the law overnight. Those quick changes can be of 2 types :overnight. Those quick changes can be of 2 types :

oo Innovation: create completely new rules of law (this was the case after Innovation: create completely new rules of law (this was the case after

WWII, when the GVT decided to set up the National Health Service, or WWII, when the GVT decided to set up the National Health Service, or more recently with the Constitutional reforms.more recently with the Constitutional reforms.

oo Enables the quick implementation of EU directivesEnables the quick implementation of EU directives

Public billsPublic bills

Bills of general public importance.Bills of general public importance.These bills are the most common types. They are usually introduced by the Government,These bills are the most common types. They are usually introduced by the Government, by the head of one of the governmental department. by the head of one of the governmental department.If it is a money bill, it is by an unbreakable convention introduced before the House of If it is a money bill, it is by an unbreakable convention introduced before the House of

Commons.Commons.

Private members billsPrivate members bills

Public bills which are introduced by a member of opposition, or by a cross bencher.Public bills which are introduced by a member of opposition, or by a cross bencher.So public bills which are introduced by another MP, not by the Government.So public bills which are introduced by another MP, not by the Government.3 ways to introduce such a bill:3 ways to introduce such a bill:- The ballot:- The ballot:- The 10 minute rule:- The 10 minute rule:

- Presentation which required the private member to give notice that he wants to- Presentation which required the private member to give notice that he wants to announceannounce

Private member bills have very little chance of becoming acts. The Government whichPrivate member bills have very little chance of becoming acts. The Government which

emanates from the parliament is the supreme law maker emanates from the parliament is the supreme law maker

Private billsPrivate bills

Law which concerns sectors, sections of the public.Law which concerns sectors, sections of the public.



Theses bills can be introduced by companies or association, and follow the sameTheses bills can be introduced by companies or association, and follow the same

procedure. procedure.Private bills and private member bills have far lesser chance of becoming actsPrivate bills and private member bills have far lesser chance of becoming acts

Process of enactmentProcess of enactment

How a bill becomes an act?How a bill becomes an act?The procedure can be divided in multiple waysThe procedure can be divided in multiple waysThe procedure is repeated in the other House,The procedure is repeated in the other House,

1.1. First readingFirst reading2.2. Second readingSecond reading3.3. Committee stageCommittee stage4.4. Report stageReport stage5.5. third readingthird reading6.6. bill sent to other House (same procedure begins again) bill sent to other House (same procedure begins again)7.7. the Royal ascentthe Royal ascent8.8. the publicationthe publication

The first readingThe first reading

When it is presented to the House in which it has been introduced (money bills always inWhen it is presented to the House in which it has been introduced (money bills always in

House of Commons).House of Commons).It is the moment when the bill is simply presented to the House, and in 2 ways: in itsIt is the moment when the bill is simply presented to the House, and in 2 ways: in its

short title (e.g.: factories act 1961) and the long title (gives the purpose of the bill: ex: anshort title (e.g.: factories act 1961) and the long title (gives the purpose of the bill: ex: an

act to consolidate the factories act 1957 to 1959).act to consolidate the factories act 1957 to 1959).

December 18December 18thth, 2007, 2007

Missing 50 mnMissing 50 mn

The law has a short title,The law has a short title,It is composed of chapters, sections and subsectionsIt is composed of chapters, sections and subsectionsMost acts have an interpretation section which proposes definitions for terms: i.e. If aMost acts have an interpretation section which proposes definitions for terms: i.e. If a

distance is specified, is it a bird’s flight or by foot, by car distance is specified, is it a bird’s flight or by foot, by car There is also a citation section: it explains how this act must beThere is also a citation section: it explains how this act must be referredreferred to. (It containsto. (It contains the official short title and official long title)the official short title and official long title)The extent section: it specifies to which part of the UK the acts applies (some acts mayThe extent section: it specifies to which part of the UK the acts applies (some acts may

not apply in every parts of the country). This was the case even before devolution begannot apply in every parts of the country). This was the case even before devolution began

in 1998in 1998There are also interpretation acts, which provided interpretation for all acts of parliamentThere are also interpretation acts, which provided interpretation for all acts of parliament

Delegated legislationDelegated legislation

Law which is made under the authority of Parliament, or directly from the executive.Law which is made under the authority of Parliament, or directly from the executive.Here again the powers of the executive are considerable. Indeed a statute in often writtenHere again the powers of the executive are considerable. Indeed a statute in often written

in way too general way to be immediately applicable.in way too general way to be immediately applicable.



Statutory instrumentsStatutory instruments

They are created every year in thousands of pages by the executive. An Act of ParliamentThey are created every year in thousands of pages by the executive. An Act of Parliament

often enables, gives the power to a Ministry to provide instruments tooften enables, gives the power to a Ministry to provide instruments toFor an act, there should be an enabling power to put it into effect.For an act, there should be an enabling power to put it into effect.TheThe statutory instrumentsstatutory instruments areare the legislative means in order to implement a statue, tothe legislative means in order to implement a statue, to

make it applicable. The statutory are related to the parent act make it applicable. The statutory are related to the parent act ..So not only the act of Parliament comes from the executive itself, but moreover So not only the act of Parliament comes from the executive itself, but moreover

Parliament enables the cabinet to provide the instruments to implement it; another Parliament enables the cabinet to provide the instruments to implement it; another

illustration of the confusion between executive and legislative powers.illustration of the confusion between executive and legislative powers.

Orders in council Orders in council

Order in councilOrder in council:: a form of legislation which emanate from the Privy Council, of whicha form of legislation which emanate from the Privy Council, of which

current and past cabinet members are memberscurrent and past cabinet members are members..These orders in council are a form of delegated legislation which operates in case of These orders in council are a form of delegated legislation which operates in case of

emergencies, but also following devolution the Privy Council has certain forms of emergencies, but also following devolution the Privy Council has certain forms of delegated powers.delegated powers.

By-lawsBy-laws

By-lawBy-law:: laws made by local authorities and other public bodieslaws made by local authorities and other public bodies. There are therefore. There are therefore

made by the local executives all over the country.made by the local executives all over the country.This power to make by-laws is often a power which is given by Parliament within aThis power to make by-laws is often a power which is given by Parliament within a specific act.specific act.

The judicial processThe judicial process

How in the course of the judicial process the law is applied, how the law is interpreted.How in the course of the judicial process the law is applied, how the law is interpreted. We shall see how in fact of judge made law and statute law are intermingled.We shall see how in fact of judge made law and statute law are intermingled.

Chapter 1: The actors in the judicial processChapter 1: The actors in the judicial process

Section 1: Executive departments and servicesSection 1: Executive departments and services

Here again, if we consider the principle of separation of powers which modernHere again, if we consider the principle of separation of powers which modern

democracies claim to abide by, we can see that it is far from being achieved. But hedemocracies claim to abide by, we can see that it is far from being achieved. But he

recent reforms especially the constitutional reform of 2005 have exhibited an intention torecent reforms especially the constitutional reform of 2005 have exhibited an intention to promote the separation of powers. promote the separation of powers.The Ministry: all the officesThe Ministry: all the officesWithin the Ministry, there is a ministry which is called the ministry of justice. It wasWithin the Ministry, there is a ministry which is called the ministry of justice. It was created on May 2007. Before that, it was called in a typical British way, a department. (Increated on May 2007. Before that, it was called in a typical British way, a department. (In

the past, ministry had a dark connotation, related to communist and tyrannical regimes).the past, ministry had a dark connotation, related to communist and tyrannical regimes).Ever since 1885 and until 2003, this ministry used to be called theEver since 1885 and until 2003, this ministry used to be called the Lord Chancellor’sLord Chancellor’s

departmentdepartment (still 2 web sites: the Lord Chancellor’s, the(still 2 web sites: the Lord Chancellor’s, the Ministry of JusticeMinistry of Justice, and also the, and also the Department for constitutional affairsDepartment for constitutional affairs (used between 2003 and 2007))... The name of the(used between 2003 and 2007))... The name of the



ministries is significant.ministries is significant.The Lord Chancellor The Lord Chancellor He was a figure who in itself but even more so than the monarch, who does not really doHe was a figure who in itself but even more so than the monarch, who does not really do

anything today, this is a figure of the embodiment of the confusion of powers. Why?anything today, this is a figure of the embodiment of the confusion of powers. Why?According to order of precedence for ceremonies, the Lord Chancellor comes before theAccording to order of precedence for ceremonies, the Lord Chancellor comes before the

Prime Minister. He was and still is a highly important figure in the English politicalPrime Minister. He was and still is a highly important figure in the English political system. He officially was the second great officer in England and Wales (the first onesystem. He officially was the second great officer in England and Wales (the first one

was the First Lord Steward, not occupied since 1421).was the First Lord Steward, not occupied since 1421).The Lord Chancellor is ipso facto a member of the Cabinet (executive power). He used toThe Lord Chancellor is ipso facto a member of the Cabinet (executive power). He used to be the speaker, the presiding figure, of the House of Lords (legislative power). Not only be the speaker, the presiding figure, of the House of Lords (legislative power). Not only

was he the head of the Lord Chancellor’s department, but he was also the head of thewas he the head of the Lord Chancellor’s department, but he was also the head of the

judiciary (he was the first judge of England) : as such he was member of the Judicial judiciary (he was the first judge of England) : as such he was member of the Judicial Committee of the House of Lord, and also the official President of the High Court of Committee of the House of Lord, and also the official President of the High Court of

Justice, Chancery division, and appointments of the judiciary (Justice, Chancery division, and appointments of the judiciary (la magistraturela magistrature) were) were

made for the most part on recommendation of the Lord Chancellor with the exception of made for the most part on recommendation of the Lord Chancellor with the exception of the highest jobs.the highest jobs.

The Constitutional reforms has changed thisThe Constitutional reforms has changed thisThe Lord Chancellor is the head the Ministry of Justice (and thus member of the Cabinet)The Lord Chancellor is the head the Ministry of Justice (and thus member of the Cabinet)

but he is no longer the head of the judiciary (who is now the Lord Judiciary) and the but he is no longer the head of the judiciary (who is now the Lord Judiciary) and the Speaker of the House of Lords.Speaker of the House of Lords.Moreover the Lord Chancellor today does not appoint members of the judiciary exceptMoreover the Lord Chancellor today does not appoint members of the judiciary except

through the recommendations of a commission that is called the judicial appointmentsthrough the recommendations of a commission that is called the judicial appointments commission, that is responsible for selecting candidates for the judiciary. Thecommission, that is responsible for selecting candidates for the judiciary. The

appointment of justices has been partly detached from the executive.appointment of justices has been partly detached from the executive.The English has been very much built on the adversarial architecture, as can be seen inThe English has been very much built on the adversarial architecture, as can be seen in the House of Commons and the House of Lords. But he House of Commons isthe House of Commons and the House of Lords. But he House of Commons is

considering of switching to a different architecture, closer to the French Parliament.considering of switching to a different architecture, closer to the French Parliament.It is also the same in the judicial process.It is also the same in the judicial process.

Section 2 :Magistrates and juriesSection 2 :Magistrates and juries

Section 3 : legal professions and partiesSection 3 : legal professions and parties

Chapter 2: Civil proceedingsChapter 2: Civil proceedings

Chapter 3 : Criminal proceedingsChapter 3 : Criminal proceedings



Chapter 4 : Judicial reasoningChapter 4 : Judicial reasoning

Documents

Anglais Juridique L2