Chapter COMMON LAW FAMILY

CHAPTER COMMON LAW FAMILY CHAPTER III COMMON LAW FAMILY (CoLF) • On the Name of this legal family: Anglo-American LF; Anglo-Saxon LF; Case law FL; CoLF • Main contents I Historical Formation & Development of the CoLF Historical formation & development of the CoL system in England The Expansion of English CoLS to other countries II Typical legal systems of the CoLF The UK legal system The US legal system HTPL Anh The UK 1535: England + Wales 1707: + Scotland 1801: + Ireland 1922: Nam Ireland tách 1972: The UK gia nhập Liên minh Châu Âu 2.Sự mở rộng Common Law sang nước khác giới HTPL Anh The UK 1535: England + Wales 1707: + Scotland 1801: + Ireland 1922: Nam Ireland tách 1972: The UK gia nhập Liên minh Châu Âu The UK court system I HISTORICAL FORMATION & DEVELOPMENT OF CoLF Formation of the Common Law System (CoLS) in England a/ Before 1066 (before the Norman Conquest) - How RoL impacted…? almost no impact on the country RoL relation b/t Romans but began a decline in 410AD as the legions departed to protect Rome - When did the English legal history start? from the end of Roman occupation, when the Germanic tribes divided up England - How was the Law in the Anglo-Saxon time? Little is known; law & courts: simple + Applied law: local custom & written law @ Local custom: predominant & diversified no law common @ Written law: custom was written down simple & limited scope (Eg) + Judicial system: Assemblies of free men (100/county courts; loc custom) Conclusion: Although being ruled by a single monarch, England has no co.L to the whole of country; the law in force was mainly local custom b/ From 1066 to XV Divided into stages: - Customary law stage (XI – XII) - Common law stage (XV – XV) b1 Customary law stage (XI – XII) •How was the English legal system after William’s victory at Hastings in 1066? •What are William’s achievements? * English legal system after William’s victory at Hastings in 1066 - After Anglo-Saxon force being defeated, William did not pay attention to law-making but to the establishment of a centralized rule at Westminster - William held all state powers but mainly use executive one + judicial power: only > high justice, … big disputes (cause Royal concerns) + legislative power: not abolish local custom nor replace existing law  what was applied law? + executive power: successfully exercised  created highly centralized ruling system b.5.3/ Statutory Instruments - Statutory instruments are secondary to acts of Parliament within legislation & have been issued in a large number - Types of statutory instruments: + Orders in Council + Rules + Orders + Local ordinances (by-laws) b.6/ EU law as a legal source in UK/En * UK joint EEC/EU in 1973 after >20 years filing application (1st:1961 1963 challenged by French; 2nd: 1976challenged by French; 3rd: 1973 member) - EU legislation is not directly applicable but requires parliamentary action to become effective in the UK (such legislation be implemented by statute or by subordinated legislation issued by English executive) Eg.: European Convention on HR 1950 implemented in UK by the passage of HRA 1998 - ECJ’s decision is source of law in ECJ & in UK courts Although it does not nullify a member state law, it must be followed in member state courts if it pertains to the meaning of treaties/EU directives * Brexit: a referendum (23/6/2016) when leave won by 52% to 48% allows UK to exit EU To leave EU, UK has to invoke Article 50 (Lisbon Treaty) which gives parties years to agree on the terms of the split UK intends to trigger the process by end of Mar 2017 (expected to have left by Mar 2019) now, EU law (legislation & case law) still takes effect in UK b.7/ Other sources - Reasons: help to fill the gaps of English law & to guide its evolution While in theory, only subsidiary, in reality, is of primary importance + CoL was originally founded on reason although this was dissimulated by the fiction of general immemorial custom of the realm + To the extent that further detailed legal rules are still to be defined, reason remains an inexhaustible source of law to which the court continue to turn - Legal writing: English law owes less to professors than it does on the continent & more to judges LW is not a formal legal source but is studied by judges & legal practitioners: + Some classic texts enjoy authority close to a binding source of law (written by Bracton_XIII & Blackstone_XVIII) + Nowadays, even modern legal texts of living authors have begun to be cited in the courts Sources of Law in the US legal system • • - Main sources: Case Law Legislation Others: Restatement of the law Legal writings: legal encyclopedias; law treatise; journal articles… 2.1 Case law - Rule of stare decisis in US differs from that in England: not operate in the same way; not so rigorous as the present English rule; has important limitation: + US Supreme Court & state supreme courts: not bound by their own decisions: # US SC: b/c of the supple manner in which the Court conceives the interpretation of the US Constitution # State SC: due to pressure exerted by the lawyers & the real desire to bring about the unity of US CoL + Each state is sovereign & the rule of stare decisis only come into operation within that state’s own court system & with respect to the subjects within its legislative competence The federal courts, in applying the law of a state, have been in a similar position: # Why federal courts hear state cases? Overlap jurisdiction in civil cases litigants can choose either federal or state court # In hearing the case, federal court has to apply state substantive law (+ conflict of law rules) but federal procedural law - Where to find case law? Law reports/reporters, websites (Lexis; Westlaw…) 2.2 Legislation (federal & state levels) - Constitution - Codes & statutes - Rules & Regulation a/ Constitution a.1/ Written constitutions at both federal & state level - Differ from England, US has written Federal constitution (FC): + a fundamental law establishes the very base of society + a central core of the US legal system, consists of highly practical legal rules, which are frequently applied by the courts & kept in mind by US lawyers - FC was passed in 1787, has taken effect since 1789 33 amendments were made but only 27 amendments were ratified by the requisite number (3/4) of states - State constitutions: each state has its own written constitution, which must consistent with FC a.2/ Characteristics of FC - FC is a social contract - FC adopts separation of powers doctrine - FC is a “living document” * FC is a social contract - FC not only a political charter but also put into operation the concept of social contract: + it limits powers of federal authorities in relation to individual states & citizens; + it unites the citizens & legitimates the established authorities Note: As it first enacted, it had no provisions on civil right but the first 10 amendments from 1791 introduce Bill of Rights * FC adopts separation of powers doctrine - Legislative, executive & judicial powers vested in Congress, President & US Supreme Court, respectively - Each of the state organs is entitled to check other while functioning: + President gets involve in law-making by either approval or veto power; + Courts get involve in law-making by judicial review; + Congress entitled to challenge a treaty signed by the President/ not to approve a decision appointing a judge or a member of the cabinet/to impeach the President for misconduct * FC is a “living document” - It is interpreted & applied in a manner that was clearly not foreseen by the drafters of the time (Eg.: separation of school for black & white pupils  unconstitutional) - It takes a position on issues that did not exist at the time the constitution was written & adopted b Codes and Statutes - In modern time, the US has experienced a proliferation of statutes measure must be taken to maintain some kind of order within enacted law & to simplify the business of consulting it consolidation of statutes has been made & the products are Revised Laws, Consolidated Laws or Codes (Eg: USC; UCC…) Note: Codes differ from those in Continental Europe - Federal legislature makes law in: tax, bankruptcy, trade protection & surveillance, money, marine, foreign relation, national defend, civil rights - States make law in: contract, corporation, penal, family, inheritance, ownership, conflict of law  In practice, many states have: Civil, criminal code; procedure code… c Rules & Regulation - US statutes have long life & their provisions are so broad  need more rules & regulation to be implemented in practice (eg.: one provision might need up to several rules to be properly implemented) - Rules & regulation are issued by governmental authorities (Federal Trade Commission, Securities & Exchange Commission, Interstate Commerce Commission, National Labor Relations Board…) 2.3 Other Sources of Law - Restatement of the law (Contracts, Torts, & Conflict of Laws…) - Legal writings: legal encyclopedias; law treatise; journal articles…  these sources are not binding but useful for catching what the law is about… ... find case law? official law reports: + The Law Reports; + Weekly Law Reports; + All England Law Reports + Specialist Law Report Series (Criminal…; Commercial…, Family? ??) b.2/ Customary law - Conditions... was the Law in the Anglo-Saxon time? Little is known; law & courts: simple + Applied law: local custom & written law @ Local custom: predominant & diversified no law common @ Written law: custom.. .CHAPTER III COMMON LAW FAMILY (CoLF) • On the Name of this legal family: Anglo-American LF; Anglo-Saxon LF; Case law FL; CoLF • Main contents I Historical