Anglais britannique

English : British Legal Institutions.

Lecture 1 : The origins of common law

UK is a parliamentary monarchy. Great Britain is composed of England, Wales Scotland and northern island. There was a devolution which gives power to Scotland's parliament in 1997.

The common law is opposed to the civil law.

        A) Historical origins

In 1056, is the Norman contest, it's the end of the rein of Henry 2. In these times, all of the part of UK had their own laws. It's mainly the aristocracy, the sheriff and? Who had the power? The king's council: it's a higher court where the justice is given. It's an itinerant court. In 1215: The Magna Carta created a high court which stays in London. They were circuit judges who represented the high court in the whole country. That's the beginning of the common law. To report a crime, they needed to be 12 persons to report a crime to the circuit judge. At the of Henry the third, the circuit judges began to have a law education. The law was created with the best laws of each regions of UK.

        B) Differences between common law and equity

The litigants were dissatisfied with the common law. Equity courts were created: there are courts where people can find an equitable solution. The judges of the equity courts had 3 kinds of remedies: injunction, rescission and specifics performances. 1873: the judicature act: fusion of the common and equity courts.

        C) Differences between common law and statute law

Common law is also often call case law (jurice prudence), mainly applied in the UK and its colony. Common law is judge centred; judge made, and privileges pragmatic approach. The judge chooses the best solution without any reference to the law. Controlling the exercise of exercise of judgement. In civil law, the judge applied the law, whereas in common law, the judge creates the law.

Common law system is based on the rule of precedent system (binding precedent). If there is a similar case before who was applied in the higher court, the judge of the lower court have to apply the same solution to what have been applied before. If a judge of the higher court isn't OK with the decision of a judge of the same court level, he can overrule this law. All the laws decided by the judges are in the Law Reports (written).

When a judge makes a ruling, they are two elements: the “ratio decidende” (core of the case law) and the “ibiter dicta” (the context). People say that common law is a good system because law evolves with society.

British constitution

Constitution is a body of rules that rules which regulate the government of the state nation. The constitution defines the methods by which power may be exercised. It's often said that Britain have no written constitution, but there are some key text which constitute the rules of the country. There are statute, case law, convention and since 1973 European Union laws.

Statute:

• 1215: Magna Carta (no one can be in prison without a judgement)
• 1679 : Habeas Corpus (it guarantee right against unfounded judgements, it was amended by the terrorist laws)
• 1689 : Bill of rights (puts an end to the King's prerogatives rights)
• 1701 : Act of Settlement (independence of the judge and state that only protestant can become King or Queen)
• 1707 and 1801 : Act of Union (first one : Scotland gave up his in independent; second one : Northern Island gave up his independence)
• 1973 : European communities act
• 1998 : Humans rights act (state that the European convention of humans rights must take effect in the United Kingdom)

Convention is what is not written but anyone do. Example: If the parliaments no longer trust the prime minister, this one must resign; the speaker of the parliament must be impartial.

                Key words:

• Act of parliament
• Binding precedent
• Case law
• Civil law
• Customs
• Circuit judge
• Equity
• Injunction
• Law report
• Litigant
• "ratio decidende"
• Remedy
• Rescission
• Specific performance
• Statute

Lecture 2 : The monarchy

1. The historical background

The monarchy is the older government system. Before the Magna Carta, the king was an absolute King. The Magna Carta is the first attempt to the absolute monarch power. The monarchs thought they rules with divine power. In 1689, the bill of rights established the principals of supremacy of the parliament; it established that any big decision had to be approved by the parliament. In the 18 century, we see the emergence of different party and the appearance of the prime minister, and it established the actual monarchy. The king or queen reins but doesn't rule, he or she is the head of the executive's power, is an integral part of the legislature, is the head of the judiciary, is commander in chief of all the armed forces and is the supreme governor of the Church of England. The monarch has 3 principals’ rights: to be consulted, to encourage and to warn. The monarch exercises he's power on the advice of the prime minister.

        B) Role of the sovereign Royal prerogatives

1. Queen, Parliament and the prime minister

        The first function of the Queen is to summon, prorogue and dissolve the parliament but today if she does so, it's only on the ask of the prime minister. Each new session of the parliament is begun by a speech of the Queen prepared by the prime minister who contains the program of the session. Another important thing about the Queen is the royal asempt. She appoints the prime minister, and she choose the leader of the political party who had the majority seats in the legislatives elections, when each party have same number of seats, the Queen have to choose the leader also. She meet with the prime minister about the week policies, the past prime ministers say that these meetings are really helpful. She can encourage or warn him. She has to care about the stability and the continuity of the country.

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