1. 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

2. 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

3. 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

4. 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

5. 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

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

7. 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

8. 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)

9. 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

10. 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

11. 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

12. 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)

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

14. 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

15. 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

16. 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

17. 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

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

19. 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

20. 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)

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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.

27. 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

28. 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

29. 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

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