THE COMMON LAW of ENGLAND

1
THE COMMON LAW of ENGLAND

• Arose in England
• Later forced on Wales
• Forms the basis of American law (with the partial
  exception of Louisiana)
• Is also the legal system of many former English
  colonies in Asia, Africa, the Caribbean, and
  North America

2
Celtic Law in England

• We know little about it (they did not have a
  writing system at the time)
• They may have had poets who functioned as judges
• The Britons (Celts in England) were conquered by
  the Romans around 50 BC

3
Roman rule

• Extended from around 50 BC to about 400 BC
• Roman law applied only to Roman citizens and had
  little lasting influence in Britain
• After the Roman legions left, the Celtic Britons
  were subject to attack
• They invited Germanic tribes (Angles, Saxons,
  Jutes, Frisians) to help defend them
• Big mistake!

4
Anglo-Saxon (Old English) law

• They had customary (unwritten) law
• Laws and legal transactions used a lot of
  alliteration, some still evident today
• To have and to hold
• Rest, residue, and remainder
• They made laws and judged cases in assemblies
  called moots
• They tried cases using the oath and ordeal

5
Written Law

• The Anglo-Saxons were illiterate
• Christian missionaries arrived at Kent around 600
  AD
• The priests and monks could writesoon written
  codes of law began to appear, starting with the
  laws of King Æthelberht of Kent (see next slide)

6
Some laws of King Æthelberht, c. 600AD

• 17. If any one be the first to make an inroad
  into a man's tun, let him make bot with six
  shillings let him who follows, with three
  shillings after, each, a shilling.
• 18. If a man furnish weapons to another where
  there is strife, though no evil be done, let him
  make bot with six shillings.
• 19. If wegreaf be done, let him make bot with six
  shillings.
• 31. If a freeman lie with a freeman's wife, let
  him pay for it with his wergeld, and provide
  another wife with his own money, and bring her to
  the other.

7
The Norman Rule

• Normans conquered England in 1066
• They spoke a type of French and used Latin as
  written legal language
• William claimed all English land and established
  a feudal system
• The Normans did little lawmaking
• Most disputes were resolved in local courts

8
Magna Carta

• Disputes between the king and the barons led to
  revolt in 1215
• King John was forced to limit some of his powers
  in a document now known as Magna Carta
• Because it limited royal power, it is seen as the
  beginning of the English constitution

9
Royal Courts

• A centralized system of royal courts was
  established in the late 13th century
• Advocates were originally clergy, but before long
  were replaced by legal professionals
• These lawyers were trained at the inns of court,
  not at universities
• They resisted civil law taught at universities
• They used French, not Latin, as professional
  language (see next slide)

10
Some French legal vocabulary

• judge, judgment, jury, court, demurrer,
  estoppel, profit a prendre, voire dire, parol
  evidence, justice, money, marriage, property,
  tort, complaint, plaintiff, defendant, appeal,
  attorney, assault, arrest, counsel, process, suit

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Royal Courts, part 2

• They developed their own law, ultimately known as
  the common law
• Cases could only be commenced by getting a writ
  from chancery
• Writs were in Latin, and consisted of commands or
  orders by the king to a sheriff or other official
• The King, to Henry Sheriff of Nottingham,
  greeting. We command you to summon David Smith
  and have him brought before our justices in
  Westminster to answer the complaint of .
• Writs in use today Mandamus, Prohibition,
  Certiorari, Habeas Corpus

12
The decline of French and the Brickbat case

• In 1688--a prisoner was sentenced who "...ject un
  Brickbat a le dit Justice que narrowly mist,
  pur ceo immediately fuit indictment drawn per Noy
  envers le prisoner, son dexter manus ampute
  fix al Gibbet sur que luy mesme immediatement
  hange in presence de Court."

13
Legal Structure Parliament

• Parliament originally merely advised the king
• House of Lords
• Comprised of peers, bishops, law lords
• Currently being modernized
• Can only delay/influence legislation
• House of Commons
• Majority party selects prime minister
• Enacts all major legislation
• The Crown (king or queen)
• Must give royal assent to all legislation

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Modern Courts Inferior

• Inferior courts
• County courts
• Like US small claims courts
• Have a professional judge
• Magistrates courts
• Judges are 3 lay persons without legal training
• They are assisted by a legally-trained clerk
• Handle most minor criminal matters and some civil
  matters

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Modern Courts, Superior

• The High Court
• Hears more serious civil matters
• Based in London (the Strand)
• The Crown court
• Hears serious criminal matters
• Has divisions throughout the country
• Includes the Old Bailey in London
• The Court of Appeals
• Divided into a criminal and civil division

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The House of Lords

• The Judicial Committee of the House of Lords
• Englands highest court of appeal
• Today, only law lords with legal training hear
  cases
• Was replaced by a new supreme court independent
  of Parliament in 2009

17
Other Courts

• Privy Council
• European Court of Justice (Luxemburg)
• UK became subject to it when joining EC
• Judgments are hard to enforce
• European Court of Human Rights (Strasbourg)
• Enforces European Convention on HR (which is now
  part of UK law)
• Individuals can sue

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English Legal Profession

• Barristers
• Traditionally educated in the Inns of Court
• Today, receive university training (undergrad)
  and later specialized training (1 year) and 1
  year pupilage
• Appear in court and wear wigs
• Traditionally, no client contact (must go thru
  solicitor)
• Top barristers become QC (take silk)
• Solicitors
• Advise clients prepare legal documents
• Assist barristers with litigation
• Traditionally they have rights of audience only
  in lower courts (changed in 1999)

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English Judges

• Lord Chancellor traditionally selected them from
  among barristers (usually QC)
• Currently there is a Judicial Appointments
  Committee (but no direct elections or
  confirmation required)
• Judiciary is highly regarded (but not very
  diverse)

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Trials

• Similar to U.S. trial procedure, but
• The loser pays the prevailing partys fees
• No contingent fees
• Juries are less common in civil cases
• Individuals can prosecute criminal cases
• In jury trials
• There is no voir dire of jurors
• Judges summarize the evidence in a summation

21
Precedent development

• Precedent (case law)
• Is the most distinctive feature of the common law
• Began with students making reports of cases
• They simply recorded what happened, as a way to
  learn to become lawyers
• They therefore focused on what the lawyers said
  (see next slide)

22
One Richard brought a writ of debt against an
abbot and a monk of his house, and he said that
the monk while yet secular had borrowed from him
ten pounds, to be paid back on a certain day, and
on that day the monk did not pay and of this he
tendered suit without showing specialty. Miggele
He demands this debt by reason of a loan made
to the monk while he was yet secular. Now that
man is dead as regards the law of the land,
inasmuch as he has professed religious vows, so
we ask judgement whether you should be received
to make such a demonstrance. Scrope When the
abbot receives a monk he must consider whether he
is not charged with debt, for he must receive him
with his charge just as a husband shall his
wife. Herle That is a different matter, for
the monk is dead at law and the wife is
not. BEREFORD, C.J. Since you only tender suit
which can involve no wager of law, since the
abbot cannot wage law upon the act of one of his
monks, the court awards that you take nothing by
your writ.
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Precedent development, pt. 2

• Lawyers began to pay more attention to what the
  judges said
• The idea arose that if a case was decided in a
  certain way, later courts should decide similarly
• It saves time and effort
• It promotes consistency across cases
• With printing, more accurate reports became
  widely available
• By late 1800s, HL considered all precedents
  binding, even on itself!

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Finding the ratio decidendi

• Cross and Harris The ratio decidendi of a case
  is any rule of law explicitly or implicitly
  treated by the judge as a necessary step in
  reaching his conclusion (its precedential
  value)
• In England, finding the ratio (holding) of a case
  is often difficult
• Judges deliver judgments orally (the reports are
  made barristers)
• There may be multiple reports, not always
  consistent
• There are often multiple (seriatim) judgments
• Thus, the ratio is flexible and may change over
  time

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Example In re Estate of Smith

• House of Lords
• Facts Jane Smiths will stated
• I give, devise, and bequeath the rest, residue
  and remainder of my estate to Felix Smith
• Felix is Jane Smiths cat.
• Janes relatives ask the court to invalidate the
  gift.
• The lower court awarded the estate to Felix.
• The relatives appeal.

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H.L. Judgments

• Lord Kyle of Lockworth My lords, it seems to me
  that cats do not understand what money is.
• I would allow the appeal

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• Lord Horatio of Higgenbottom
• My lords, in my opinion cats are not as
  intelligent as human beings.
• I would allow the appeal.

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• Lady Mary of Maplethorp
• My lords, I am shocked by the blatant anti-feline
  sentiments expressed by my noble and learned
  friends Lords Kyle and Horatio. My cat is more
  intelligent than most people I know.
• I would dismiss the appeal.

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• Lord Chevy of Cheltenham
• I believe the testator should be permitted to do
  whatever she wishes with her estate.
• I would dismiss the appeal.

30

• Lord Finley of Fishingham
• I own that I am deeply conflicted by this case.
  I was scarcely able to sleep last night. Yet
  while eating breakfast this morning and observing
  my own dear cat, it occurred to me that cats are
  incapable of operating ATM machines.
• I would allow the appeal.
• Appeal allowed.

31
Whats the ratio???
32
American Innovations

• Opinions delivered in writing
• The appointment of official reporters
• The elimination of seriatim opinions
• Hierarchical Organization of Courts

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Supreme Court of the United States

• KYLE, J., delivered the opinion of the court, in
  which HORATIO and FINLEY joined.
• recites facts
• We will conclude, for three reasons, that the
  lower courts opinion should be reversed.
• First, cats do not understand what money is. In
  addition, cats are not as intelligent as humans.
  Finally, cats cannot operate ATM machines.

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Last paragraph of opinion

• For the foregoing reasons, we hold that cats
  cannot inherit under a will.
• Reversed.
• or
• For the foregoing reasons, we hold that animals
  cannot inherit under a will.
• Reversed.
• or
• For the foregoing reasons, we hold that animals
  cannot legally own property.
• Reversed.

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Dissent

• JUSTICE MARY, with whom JUSTICE CHEVY joins,
  dissenting.
• This is a blatant case of anti-feline
  discrimination. In addition, it seems to us that
  people should be able to do whatever they want
  with their money.
• We dissent.

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Precedent UK vs US

• English conception of precedent is
• Generally more binding
• Also more oral
• And more flexible (subject to reinterpretation)
• American precedent is
• More written (publication requirement)
• More textual
• we hold that .
• Lawyers engage in less legal reasoning, more
  close reading

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Statutory Interpretation

• The literal rule
• Do not deviate from the plain meaning
• The golden rule
• You do not apply the statute literally if it
  would lead to an absurdity
• The mischief rule
• If a literal interpretation would lead to an
  absurdity, you can consider a statutes goal or
  purpose
• Extrinsic evidence
• Traditionally judges could not consider it
• Currently judges can sometimes refer to
  parliamentary materials to determine a statutes
  goal

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The Constitution

• No formal process for enacting/amending
• Not contained in a single text (unwritten)
• Based partly on important historical documents
• Magna Carta (1215)
• Bill of Rights (1689)
• Certain modern treaties (e.g. the EC Act)
• Also based on custom and convention
• Structure of the government and role of prime
  minister
• Supremacy of Parliament (courts cannot declare
  statutes unconstitutional)

39
Which is best???