Introduction to English legal system
高橋宏司
Optional reading:
- Birks (ed) English Private Law (Oxford English law, volume 1) “Sources of Law”
pp 3-46.
- For the discussion of topical legal issues of the UK, a useful source is the BBC
website. (From www.bbc.co.uk look for the websites for “Law in Action” and
“Unreliable Evidence”, programmes dedicated to the discussion of topical legal
issues. Both websites contain audio clips of the previous broadcasts).
- 高橋宏司 「コモン・ロー国への日本法紹介：その方法論」ワールドワイドビジネス
レビュー 9-1 (2007 年) 311-338 頁
(http://doors.doshisha.ac.jp/webopac /bdyview.do?bodyid=UC12167346&elmi
d=Body&lfname=038009010001.pdf&loginflg=on)
1. Constituent Territories of the United Kingdom
2. British Constitution
No written “Constitution”.
To be found in the ordinary law (eg Parliament Act 1911, Constitutional Reform
Act 2005) - could be changed in the same way as any other law.
Individual liberty at risk – the Human Rights Act 1998. Still, the final decision
with Parliament.
Human Rights Act 1998
4 Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with a Convention
[European Convention on Human Rights] right.
(2) If the court is satisfied that the provision is incompatible with a
Convention right, it may make a declaration of that incompatibility.
…
(6)A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
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3. Legislature
'sovereignty of Parliament'
a.
House of Lords
Hereditary peers and life peerages.
If a bill is rejected twice, unless the House of Commons vote to the contrary,
becomes an Act: Parliament Act 1911.
b. House of Commons
Elected MPs.
Duration: five years or less.
4. Executive
The Queen is the nominal head.
The leader of the majority party becomes the Prime Minister – unlimited powers.
5. Judicial System
a.
The Courts
i.
The High Court of Justice
One judge sitting alone as a court of first instance.
ii.
The Court of Appeal
Heard by three judges.
Reluctant to disturb findings of primary fact.
iii. The Supreme Court
The final court of appeal.
Prior to October 2009, the House of Lords, as a committee composed only of the
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Law Lords, was also the final court of appeal of the UK.
As from October 2009, the Supreme Court replaced the House of Lords in its
judicial capacity.
Hears appeals on points of law.
Concentrates on cases of the greatest public and constitutional importance.
12 Justices.
Usually a five-judge panel is constituted.
iv. The Court of Justice of European Union
The highest court on EＵ law questions.
Preliminary rulings.
b. The doctrine of 'stare decisis'
The Supreme Court not bound except by the decisions of the European Court of
Justice.
The Court of Appeal bound by the Supreme Court's decisions and by its own
decisions.
The High Court bound by the decisions of the Court of Appeal and the Supreme
Court.
“follow” or “distinguish”
'ratio decidendi' cf. “obiter dicta”
Certainty, rigidity versus flexibility.
6. Legal Profession
Barristers
Right of audience
High Court judges chosen from the ranks of barristers
Now, exceptions have been introduced.
Solicitors
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Instruct barristers on behalf of their clients.
7. Sources of law
a.
Judicial decisions
‘If you want to discover what English law is on a certain point, all you have to do
is to read through reports of half a million cases, going back to the 13th century
because we like to keep our records in order and you will surely find the answer.
Or else you can take a shortcut and look at a good textbook, which might be
considered cheating but is a good deal easier as a starting point! You would
regard this as a conceptual muddle, we in England call it pragmatism.’: Roy
Goode
‘The
Concept
of
"Good
Faith"
in
English
Law’
(http://www.cisg.law.pace.edu/cisg/biblio/goode1.html)
b. Legislation
Introducing new principles, repealing existing laws, consolidation, (and
codification).
c.
European Union Law
Takes precedence over conflicting national law, notwithstanding the sovereignty
of Parliament.
European Communities Act 1972
- Regulations, directly applicable in the Member States.
- Directives, leaving to the national authorities the choice of form and methods.
8.
“Common Law”
a.
Judicial decisions
b. Common law as opposed to equity
Equity:
To alleviate the harsh applications of the common law.
In its beginnings, the Lord Chancellor, as keeper of the King's conscience,
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decided on the basis of conscience. But binding precedents developed, as fixed
as those of common law.
e.g. injunction, specific performance
Institutionally merged in 1870s.
c.
Laws of England and other countries influenced by hers, cf. civil law.
In the civil law countries, the judges seek to avoid obscurities and gaps in a
statute by going back to the purposes of the statute itself. They reason from
legislative texts by analogy (mutatis mutandis applications).
The common law statutes make no pretence of completeness. They only fix rules
for well defined situations. The English regard it as dangerous to make general
principles to cover the whole area of life; 'we will cross the bridge when we come
to it'. Statutes are applied only to the precise situations which are unquestionably
covered by their terms. The judges do not reason from the legislative texts by
analogy.
William Tetley, Mixed jurisdictions: common law vs civil law (codified and
uncodified) (http://www.cisg.law.pace.edu/cisg/biblio/tetley.html)
“… civil law systems are "closed", in the sense that every possible situation is
governed by a limited number of general principles, while common law systems
are "open", in the sense that new rules may be created or imported for new
facts.”
“Civilian statutory general principles need not be explained, precisely because
they are not read restrictively (not being exceptions), but need to be stated
concisely if the code is to be exhaustive. Common law statutory provisions need
not be concise, because they cover only the specific part of the law to be
reformed, but must be precise, because the common law courts restrict rules to
the specific facts they are intended to cover.”
“Those styles can be found in international Conventions. The Hamburg Rules
were drafted in a civilian style with the rule of responsibility in one sweeping
article. The Hague Rules, by comparison, were drafted in a common law fashion,
with responsibility in three very long and detailed articles, being Article 3(1) on
seaworthiness, Article 3(2) on care of cargo and Article 4(2)(a) to (q) on 17
exculpatory exceptions.”
Hamburg Rules
Article 5
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Basis of liability
1. The carrier is liable for loss resulting from loss of or damage to the goods, as
well as from delay in delivery, if the occurrence which caused the loss, damage
or delay took place while the goods were in his charge as defined in article 4,
unless the carrier proves that he, his servants or agents took all measures that
could reasonably be required to avoid the occurrence and its consequences.
Hague Rules
Article 3
1. The carrier shall be bound before and at the beginning of the voyage to
exercise due diligence to:
Make the ship seaworthy;
Properly man, equip, and supply the ship;
Make the holds, refrigerating and cold chambers, and all other parts of
the ship in which goods are carried, fit and safe for their reception,
carriage, and preservation.
2. Subject to the provisions of Article 4, the carrier shall properly and carefully
load, handle, stow, carry, keep, care for, and discharge the goods carried.
Article 4
2. Neither the carrier nor the ship shall be responsible for loss or damage arising
or resulting from:
(a) Act, neglect, or default of the master, mariner, pilot, or the servants of
the carrier in the navigation or in the management of the ship.
(b) Fire, unless caused by the actual fault or privity of the carrier.
(c) Perils, dangers and accidents of the sea or other navigable waters.
(d) Act of God.
(e) Act of war.
(f) Act of public enemies.
(g) Arrest or restraint of princes, rulers or people, or seizure under legal
process.
(h) Quarantine restrictions.
(i) Act or omission of the shipper or owner of the goods, his agent or
representative.
(j) Strikes or lockouts or stoppage or restraint of labour from whatever
cause, whether partial or general.
(k) Riots and civil commotions.
(l) Saving or attempting to save life or property at sea.
(m) Wastage in bulk or weight or any other loss or damage arising from
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inherent defect, quality or vice of the goods.
(n) Insufficiency of packing.
(o) Insufficiency or inadequacy of marks.
(p) Latent defects not discoverable by due diligence.
(q) Any other cause arising without the actual fault or privity of the
carrier, or without the fault or neglect of the agents or servants of the
carrier, but the burden of proof shall be on the person claiming the
benefit of this exception to show that neither the actual fault or privity of
the carrier nor the fault or neglect of the agents or servants of the carrier
contributed to the loss or damage.
Interpretation Act 1978
6 Gender and number
In any Act, unless the contrary intention appears,-(a) words importing the masculine gender include the feminine;
(b) words importing the feminine gender include the masculine;
(c) words in the singular include the plural and words in the plural include the
singular.
William Tetley, Mixed jurisdictions : common law vs civil law (codified and
uncodified)(http://www.unidroit.org/english/publications/review/articles/1999
-3.htm)
“In the eyes of an Englishman, the French règle de droit is situated at the level of
a legal principle (principe juridique); to him it appears to be more a moral
precept than a truly 'legal' rule."
“The English legal rule [...], in the eyes of a French jurist, is situated at the level
of a particular judicial application made of the rule; it is easy enough for him to
understand but to him such a concept gives English law a case-by-case and
therefore an organisationally unsatisfactory character."
Lord Cooper (Scottish judge) ‘The Common Law and the Civil Law – A Scot’s
View’ in: Selected Papers 1922 –1954 (Edinburgh, 1957) 201 at 204.
'The civilian naturally reasons from principles to instances, the common lawyer
from instances to principles.
The civilian puts his faith in syllogisms, the
common lawyer in precedents; the first silently asking himself as each new
problem arises, "What should we do this time?" and the second asking aloud in
the same situation, "What did we do last time?" … The civilian is chiefly
concerned with the policy and rationale of a rule of law, the common lawyer with
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its pedigree. The instinct of the civilian is to systematise. The working rule of the
common lawyer is solvitur ambulando [it is solved by walking].’
9. Interpretation of legislation
literal approach
purposive approach
Pepper v. Hart [1993] 1 All ER 42 (House of Lords)
(1) the legislation in question was ambiguous, obscure or led to absurdity;
(2) the material relied on consisted of statements by a Minister (or the promoter
of the Bill); and
(3) the statements relied on were clear.
Critique
The expression 'the legislative intent' does not mean 'the intention of the
legislature' but 'the intention of the legislation'.
The decision has added enormously to the costs of civil litigation.
Explanatory Notes to Acts of the UK Parliament
Since 1999, all new Acts which result from Bills introduced by a Government
Minister are to be accompanied by Explanatory Notes.
Lord Steyn, “Pepper v Hart; A Re-Examination” OJLS 2001.21(59)
In my view the case for permitting reference to [explanatory notes] is
strong. What is impermissible is to attribute such statements to
Parliament as expressing the will of the legislature.
EU law requires purposive interpretation.
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These notes refer to the Constitutional Reform Act 2005 (c.4) which received
Royal Assent on 24 March 2005
CONSTITUTIONAL REFORM ACT 2005
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Constitutional Reform Act 2005 which
received Royal Assent on 24 March 2005. They have been prepared by the
Department for Constitutional Affairs in order to assist the reader in
understanding the Act. They do not form part of the Act and have not been
endorsed by Parliament.
2. The notes need to be read in conjunction with the Act. They are not, and are
not meant to be, a comprehensive description of the Act. So where a section or
part of a section does not seem to require any explanation or comment, none is
given.
OVERVIEW
3. The Constitutional Reform Act modifies the office of Lord Chancellor and
makes changes to the way in which some of the functions vested in that office
are to be exercised. The Act also creates the Supreme Court of the United
Kingdom and abolishes the appellate jurisdiction of the House of Lords. It
creates the Judicial Appointments Commission to select people for judicial
appointments in England and Wales, and provides for judicial discipline in
England and Wales. The Act modifies the jurisdiction of the Judicial Committee
of the Privy Council and removes the right of the Lord President of the Council to
sit judicially.
4. The explanatory notes are divided into parts reflecting the structure of the
Act. In relation to each Part, there is a summary and background section.
Commentary on particular sections is then set out in number order, with the
commentary on the various schedules included with the section to which they
relate.
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