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Common Law Why is it called “common”? Its main features and maxims.

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Presentation on theme: "Common Law Why is it called “common”? Its main features and maxims."— Presentation transcript:

1 Common Law Why is it called “common”? Its main features and maxims.
How widespread is it?

2 Why is it called ‘common’?
There are several historical uses of the term that provide some background as to its meaning. The English Court of Common Pleas dealt with lawsuits in which the King had no interest, i.e. between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term ‘common law’ was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.

3 Meanings of ‘common law’
1. Common law is the basis of English Law today: it is unwritten law that developed from customs and judicial decisions. 2. This phrase is also used to distinguish laws that have been developed by judicial decisions, from laws that have been created by statute or other legislation. 3. Common law is also used to distinguish between rules that were developed by the common law courts (the King’s courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery courts.

4 Equity Before 1873, England had two parallel court systems:
courts of ‘law’ that could only award money damages and recognized only the legal owner of property; courts of ‘equity’ that could issue injunctive relief (a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property.

5 The doctrine of precedent:
The English system of precedent is based on the Latin maxim Stare decisis et non quieta movere = ‘stand by what has been decided and do not unsettle the established’. This supports the idea of fairness and provides certainty in the law.

6 ratio decidendi = the reason of deciding

7 obiter dicta = other things said

8 Consisting of one or more ratio decidendi.
3. Judgments Consisting of one or more ratio decidendi. (reason of deciding)

9 A knowledge of the structure and hierarchy of the courts is essential to an understanding of the doctrine of precedent

10 The final appeal in each may be to the House of Lords.
Although this had its origins in the role of Parliament as a court, it is now in effect simply the ultimate court of appeal, its members being the Law Lords (12 most senior judges appointed to that office).

11 The Court of Appeal has 2 divisions: the civil division and the criminal division.
It is a part of what is known as the Supreme Court Judicature.

12 Family Division, which deals with marriage, divorce and children.
The courts of first instance became known as the High Court of Justice. For convenience, it is divided into divisions which deal with different types of cases: Queen’s Bench Division, which deals with general civil cases such as personal injury, medical negligence, libel and contract disputes; Chancery Division, which deals with company law cases, disputes involving trusts and trustees, bankruptcy and wills and probate Family Division, which deals with marriage, divorce and children.

13 If the point of law in a case has never been decided before.
4. Original precedent If the point of law in a case has never been decided before.

14 A’s court > B’s court
5. Binding precedent It is only created when the facts of the second case are sufficiently similar to the first case and the decision has been made by a court which is senior to (or in some cases the same level as) the court hearing the later case. B (x,y) = A (x,y), if A’s court > B’s court A = first case B = second case (x,y) = facts of the case

15 6. Persuasive precedent (1) Not binding on the court, but the judge may consider it and decide that is a correct principle so he is persuaded that he should follow it.

16 courts lower in hierarchy;
Sources of persuasive precedent: courts lower in hierarchy; statements made obiter dicta (particularly where the comment was made in a House of Lords decision); dissenting judgment; decision of courts in other countries * especially when the other country also uses the common law system – Commonwealth countries such as Canada, Australia and New Zealand, but also US, Singapore, Malaysia, large parts of Africa, India, Pakistan, South East Asia and North America;

17 Common law = all legal systems which have adopted the historic English legal system
The common law comprises the legal principles, as articulated by the courts, that derive from ancient custom in England. Common law is sometimes divided into the common law (or simply ‘the law’) and equity. case-centred, therefore judge-centred allowing scope for a discretionary ad hoc pragmatic approach to the particular problems that appear before the courts substantive law and procedural rules that have been created by the judiciary through the decisions in the cases they have heard (although there has been a significant increase in statute law in the 20th and 21st centuries)

18 ‘Case study’: European Court of Justice
ECJ is in practice increasingly recognising the benefits of establishing a body of case law. Although the ECJ is not bound by the operation of the doctrine of stare decisis, it still does not decide individual cases on an ad hoc basis and, therefore, in the light of a perfectly clear decision of the European Court, national courts will be reluctant to refer similar cases to its jurisdiction.

19 Where? Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including: the United States Singapore Pakistan India Ghana Cameroon Canada Ireland New Zealand Australia South Africa Hong Kong

20 Bibliography 1. The common law, by Oliver Wendell Holmes Jr., Dover Publications, Inc., New York, 1991. 2. The English Legal system, 8th edition, by Garry Slapper & David Kelly, Routledge-Cavendish Publishing House, New York, 2006. 3. The Law Student’s Handbook, by Steve Wilson, Philip Kenny, Oxford University Press, New York, 2007. 4. Law made simple, 12th edition, by D.L.A. Barker, Elsevier Ltd., Oxford, 2007. 5. The English Legal System, by Jacqueline Martin, Hodder Arnold Publishing House, London, 2007.

21 Thank you !

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