Cours institutions juridiques britanniques L1 droit

Anglais UK: institutions britanniques:

Introduction:

        Common law, this word is going to have different meanings.

Fist of all, the expression refers to the law that was developed after the norman conquest. Before all of the law were different in each part of England.  The British monarchy was established by the normans, and their chief was William The Conqueror. He went to England in 1066. And before the conquest there were no law that was common for everyone. After the conquest the normans developed the law. That's the 1st expression.

        When you use this term, this is opposed of the notion of equity. After the common law was developed, many problems started to happen. An other source of law was developed to solve that problem. Those terms are opposed. Equity is less harsh than the common law.

        This term is also the law made by all the decisions made by the Court. It may also refers to case law. All the decisions made by the Court are part of the law. All the law are known as case law. This category of law as known as statute law. A statute is a piece of legislation passed by Parliament. In the US it's the Congress. A statute is a written law. We can also speak of an act of Parliament and Congress. The common law is opposed to statute law.

        It also refers to the countries who adopted the common law vs the countries of the civil law. We refereed to the whole system of law.

What is the history of the common law ?

        The starting point is 1066. In 1066 a Norman duke, W. The Conqueror decided to cross the sea. And started the battle of Hastings. Following the battle he became the King. If he wants to become the King, he had to create a common system of law.  At the time the country is divided in 2 different parts called shires. Called hundred, in which there were local customs. These customs  were different in every locations. The idea of W.the conqueror is to set up a barrier of rules common to every one. It was also a mean to take more control for himself. He deprived the locals judges.

        He is going to sent itinerant judges. There are judges and they are going to travel all around the country in order to review all the customs applied in England. They study the customs and then come back to London to speak about these customs. In London they are going to keep the best customs and get rid off the bad ones. They are going to discuss that in order to solve the problem. They are going to compare them, and they are going to keep the best ones. It took approximately 200 (250) years. At this time, the law became unified and the same to every one. The law became common to the whole country and this was called the common law.

        By the term law, here we speak of Droit. The common law = le Droit commun.

        Not only W.The conqueror sent people, he also created central courts in England. He created the court of exchequer which was in charge of dealing with the taxes. There is also the Court of Common Pleas, this court dealt with all kind of civvies disputes. And the last one is the court of king's bench, it dealt with the most important civil and criminals cases.

        It was not a right an legal action. They needed to have a writ, and this came from the King. The Court on behalf of the King gave the writ. It was a favor written by the King. You had to be allowed to have that action but you had also to pay. The number of writs was limited of 56. A writ was the right to start an action but the number of cases was limited that matched the cases of people. The number of writs increased little by little. The common law system was criticized because it was a very rich and burdensome system. Today you just need a writ of summons or a summons (une assignation). Regarding the common law system, it was very important that when something was decided, the rule of precedent needed to follow. Every time a judge make a decision, he makes a legal principle. And that principle needs to be followed the precedent. Back in the XIX century, rape wasn't a part of marriage, it wasn't possible that a wife could have been raped. It's for the judges to find guidance. It also assure a form of consistency of the law. In respect of the same facts, contraries decisions couldn't be made. Normally, when a decision has been made, the judge has to make the same decisions. There was no freedom. (leeway= marche de manoeuvre) To keep some freedom, the english judges are going to distinguish. If the facts are not similar, the judge needs to find a small detail of the new case to find a solution. In some cases the details are minors but it have to be deal differently.

        You distinguish 2 different part: one is called the obiter dictum and the other one is called ration decidendi and the actual decision. The actual decision from the legal point of view it's not very interesting. The obiter dictum, several precedents are going to be applied, the judge is going to referred to all the decisions that were made by the court. In the end there is the ration decidedi, the judge is giving the decision and his reasons. This was abolished at the beginning of the 80's.

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