Inglese giuridico (M-Z) prof.ssa C.M.Cascione Lezioni n. 1-2 16-18 febbraio 2015 Law Common law The development of English law

Meanings of ‘Law’ LEGGE (gen.) To break the law = infrangere la legge To keep the law = osservare la legge LEGGE (tec.) To pass a law = approvare una legge To repeal a law = abrogare una legge 3. GIURISPRUDENZA (law as a branch of knowledge) To study law = studiare giurisprudenza Law faculty = facoltà di giurisprudenza DIRITTO (body of laws relating to a subject) Criminal law = diritto penale Public law= diritto pubblico 5. GIUSTIZIA The fugitive avoided the law= il fuggitivo è sfuggito alla giustizia

Meanings of ‘Law’ 6. PROFESSIONE LEGALE, AVVOCATURA To practise law = esercitare la professione legale AZIONE LEGALE To go to law = procedere per vie legali To take someone to law = iniziare un’azione legale nei confronti di qualcuno PRINCIPIO The law of gravity= il principio di gravità 9. REGOLA The rules of grammar = le regole grammaticali 10. ORDINE (Fig .) His word is law = la sua parola è legge

Definitions of ‘Law’ A rule of human conduct, prescribed or formally recognized as binding or enforced by a controlling authority Law is a rule or a body of rules Scope: the guidance of human conduct Law is imposed Law is binding Law is enforceable Law is applied within a State

Definitions of ‘Law’ .a statute, ordinance or regulation enacted by the legislative power of a State . the whole body of rules and doctrines relating to one subject

Classifications of Law Public law v. Private law Criminal law v. Private law Substantive law v. Procedural law Municipal law v. International law

Public law v. Private law Public Law that part of the law which governs the relationships between the individuals and the State Private Law that part of the law which governs the relationships among individuals regulating rights and duties among each others

Public Law that part of the law which governs the relationships between the individuals and the State Constitutional Law (body of rules which regulate the structure of the principal organs of the State and determine their principal functions) Administrative Law (body of legal principles which concern the rights and duties arising from the impact on the individuals of the actual functioning of the executive instruments of government) Criminal Law (part of the law which characterize certain kinds of wrongdoing as offences against the State)

Law of contract Law of tort Law of property Law of succession Private Law that part of the law which governs the relationships among individuals regulating rights and duties among each others Law of contract Law of tort Law of property Law of succession Family law

Criminal Law v. Private Law Main differences: 1. Private law: deals with the resolution of disputes among two or more parties by providing a remedy for a wrong that has been suffered/Criminal law: deals with offences against the State or its citizens and preserves public order 2. Private law: the main action is begun by private citizens/Criminal law: the main action is enforced in behalf or in the name of the State 3. Remedies

Substantive Law v. Procedural Law Substantive law: the body of the rules of law in the above branches Procedural law: the body of the rules governing the manner in which a right is enforced under private law or a crime prosecuted under criminal law

Municipal law v. International law Municipal law: the law operating within a State International law: the law which governs the relations of the State inter se (public international law)

Common law Common law as a legal family Common law as case law Common law in opposition to ‘equity’

Common Law v. Civil Law Common law Civil law Emerged in England Emerged in continental Europe Was applied in english colonies Was applied in european colonies Is uncodified Is codified Judicial decisions are sources of law Judicial decisions are not sources of law

Common Law v. Statute law Case law Judicial decisions Acts of Parliamens Legislation Unwritten law Written law Pronounced by judges when deciding cases Not formally enacted by the legislature Enacted by the legislator according to procedures recognised as valid for producing law

Common Law v. Equity Common law Equity The branch of English law developed since the Norman conquest in 1066 The branch of English law developed since XV century Based on the system of writs Emerged in opposition to the system of writs Developed by the Courts of Westminster Developed by the Chancery Court Characterized by strong formalism Not based on strict formalities

History of English Common Law Origins of English common law: Norman conquest (1066): - The customs of the Saxons weren’t abolished immediately Many innovations were introduced CREATION OF A FEUDAL SYSTEM The land was allocated to feudal vassals of the king and was created a chain of feudal relationships

Feudal system King Tenants in chief (lords or members of aristocracy) Intermediate tenants Tenants in demesne (who actually occupied the property)

Administration of justice First itinerant justice the royal judges went out to provincial towns and applied everywhere the common law both in criminal and in civil cases From the XIII century creation of the Courts of Westminster to apply the common law

Courts of Westminster Exchequer King’s Bench Common pleas (for the administration of the royal treasury) King’s Bench (for criminal matters and for any case which concerned the monarchy) Common pleas (for questions of civil property and, in general, civil claims)

The system of the writs Writ = a written order in the king’s name, issued by the king’s writing office (chancery) at the istance of the complainant Ordering the defendant to appear in the royal courts to see justice done If a plaintiff wished to have justice he would need a writ to enable to do it

WRITS For every complaint a specific writ: The plaintiff had to ask for the right writ If the plaintiff asked for the wrong writ he wouldn’t have justice Ex: - writ of right: for a proprietary action - writ of convenant: for breach of contract GREAT FORMALISM

WRITS GREAT RELEVANCE: in common law there is a right where there is a writ to enforce it Remedies precede rights Creation of new writs creation of new rights Great developement of common law

CRISIS OF WRITS Problems: formalism: who chose the wrong writ lost the action Expensiveness: who hadn’t enough money couldn’t obtain justice The centralization of justice and the growing power of royal courts reduced the power of the Lords strong opposition

Magna Charta (1215) The first step of the opposition of the Lords A fundamental document in English history which is the starting point for the protection of freedoms in English structure Required the king: - renounce certain rights - respect some legal procedures - accept that his will would be bound by the law

Magna Charta Fundamental clauses: No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 60. Moreover, all these aforesaid customs and liberties, the observances of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all of our kingdom, as well clergy as laymen, as far as pertains to them towards their men.

Equity The first consequence of the crisis of the writs was the development of Equity jurisdiction: The mechanical application of writs did often result in injustices; Many plaintiffs started recurring straightly to the king to obtain justice; For the growing number of the petitions, the king delegated the task of hearing petitions to the lord chancellor; The early chancellors were clergymen that operated as “keepers of king’s coscience”; So it was developed an autonomous body of rules, known as Equity

Equity = the complex of the rules, originally created to mitigate the strictness of common law, developed in the Court of Chancery It was characterized: By the informality of the procedure; The trial was very fast and informal (the chancellor collected evidences; heard the parties and the witnesses and then took the decisions); The decisions were taken on the basis of rules initially inspired to moral and catholic principles, on aequitas; The chancellor gave orders in personam (to do or not to do something) to purify the respondent’s coscience

The contrast between Common law and Equity At the beginning = equity followed the law = the equity solutions were not in contrast with common law By the time begun a strong contrast between common law and equity = different solutions in the two fields of jurisdiction Who had lost in a common law procedure often advocated the equity courts that frequently reversed the decision It was inacceptable for the Westminster’s judges and a strong contrast started

The law reforms - The contrast between common law and equity - The industrial revolution Required reforms JUDICATURE ACTS (1873-1875): REORGANIZATION OF THE COURTS OF JUSTICE FUSION BETWEEN COMMON LAW AND EQUITY’S COURTS ABOLITION OF THE FORMS OF ACTION