General characteristics of the Anglo-American legal systems

ANGLAIS

General characteristics of the Anglo-American legal systems

Introduction :

Generally speaking, America and Britain are called the common law. What does it mean?

In fact, it’s not easy to give a precise meaning of this term. It is used in a nombre of different ways, different aspects. We can say basically that there is 3 basic uses of the term common law. 

First, when we say common law, this term is used as a description of the general system of law within a national jurisdiction, within a country.

Second, when we say common law, it is a specific description of the historical development in England and Wales.  It only applies to England and Wales because they have a specific historical development.

The third way of understanding the term common law, it’s when it’s used as a description of a particular set of rules in contrast to the rules of equity and statute law. 

About the first meaning : Common law jurisdiction is used to make a difference, to distinguish one type of general legal system from other legal systems. In this case, common law is used to distinguish common law jurisdiction from civil law jurisdiction. As we know, in Europe, there are 2 major systems of law: the roman system and the english legal system. This 2 systems were exported by empire and they have survived in different forms, so that today much of the world is governed by one of this system. There are states who’s laws come from the english system and these countries as Canada, Australia and many english spoken countries, are called common law jurisdiction country.

About the second way: this meaning comes from the historical development of England and Wales. At the beginning the law was different from one area to and other. And throughout the develoment of history, the law became common to the hole contry. And as the law was the same, it became the common law, the law common to everyone in the country. 

About the third meaning: it is the modern use of the term common law. It is in opposition to the notions of equity and statute law. Statute law is law from parliament, and equity is a set of law which appear throughout history. In this sens, the comon law is the hole set of rules, the totality of the rules created by the judges and which are not equity and not statute law. This rules which belong to the common law rather than equity can not just be stated as a distinction. It is not conceptual, it’s something which has emerged throughout history. In english law, lawyers must know the rules of common law and also the rules of equity. And in many situation, the rules of equity and the rules of common law might ? . It’s always equity which prevails.

The second way: the common law as the result of a historical development.

Section 1) Origin and development of english law

When the term english law is used, it refers to the law of england and wales. Scotland, and Northen Island are separate. English law is the result of a historical develoment. The most important sources of law are common law, equity, judicial precedents (it is previous decision by judges). In the 18e and 19e, British parliament became very powerfull and statue law emerge as the main source of law.  Even now, law from parliament is the major source of law. During the 20’s century, new source of law appeared: delegated legislation and europen law.

1. Case law

Case law also called common law case law and the king course.

1. Common law case law

In order to understand what is case law, we have to go back to the king course. William, duc of normandy. At the time there was no single national legal system. Instead, there was a complex mix of legal rules. There were course, but they could deal with different problems and sometimes the court might overlap and there was a competition between the judge and the state. That was the situation before the invasion by William duc of normandy. Justice for the anglosaxon was a combinaison of royal government and local court. Local court was presided over by a lord or a representative of the lord. And the king’s court, in latin Curia Regis, was presided over by the king himself. And little by little, William the first and his successed unified the law of the land by establishing royal courts and gradually, the royal court supplanted local courts. There were itinerant justices who traveled around the country, they were people from the king’s court going all over the country and telling the people which decision to take. They handed down the decision in the king’s name. In 1166, it is the date of declaration at the Assize of Clarendon. An assize was an early form of the king’s… And the term later became the name of a sitting of the court. The Assize of Clarendon some judges had to traval the country and to decise the cases. they had to go in many areas and they had the responsbility of deciding the case.  In order to this, they used the law made by the king. And gradually they would not take into a count the local customs. Little by little this law became national and they were applied to everyone, they were common to all and this is how the common law started.Thanks to the french, the common law came to birth, because it is after the invasion of william duc of normandy that little by little there was a unification of the english system. And with this unification, the law became common to everybody, and this is why there is this term, the common law, the law common to every citizen. And this has been made possible due to the king sent people all arount the country to say his law and to make decision according to the king’s law. Before, for each case, a decision was taken according to the area.

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