English legal system and difference with the civil law

English law system and common law

  • Distinction between Common law and civil law :

Civil law as the traditions, so civil law countries. When French lawyers used Common Law it’s often opposite to the civil law system. We can say that Common Law and civil law represent different families (familles de droit). In comparative law, law is categorized among different families. Civil law is one family, Common Law is one family.CL and civil law are opposed and are considered at different families.

The civil law is also named the continental system and it differs from the Common Law in that it’s based on the primacy of written law. The role of the statute law is different in Common Law and in civil law countries. But this opposition is also historic. In continental Europe the law is influenced by Roman law. We can see the heritage of Roman law. Another distinction is that in civil law countries the way to create the law is to enact a series of law and built a court. The codification wasn’t important as continental system in Common Law system. Of course, today these differences aren’t so important as they could be before. But the traditions still and the way of thinking the law, practicing the law is different. A Scottish law was before being part of UK, it was a civil law system. Then with its participation to the UK, Common Law has been applied in Scotland and so for the English lawyers. This distinction between Common Law and civil law give an end to an introduction of what Common Law is.


English Legal System:

Lecture from a foreigner perspective.Comparative law is important, comparative perspective. Presentation of the English legal system from a French perspective.

Thanks to this course we can have a different vision, angle of what French law is.

The purpose of this course isn’t to transform us in British lawyers, English law experts. This course is here to brought you a new vision.

A law can gain (entrer) on a lot of territory. We probably knowthat there’s a competition between laws in the world. First state, a good law permit to businessman to createrelationships, values, money.We should interest to have a good law.

When English businessman decides that his contract should be covering by English law which is by the way a freedom they have, it’s very likely (probable) that in case of problem, in case of disputes, this businessman decides to settle the dispute. The businessman decides to use English law.

Why is it an interest for this state? The justice creates some money (feels of the lawyers, the taxes paid by these lawyers). It will create some activity in the country.

The competition takes place between laws of the states. It’s very remarkable that this law competition is supported in the way by an international organization which is the World Bank (in Washington). The World Bank publishes each year a report which is read everywhere in the world and this report is named “Doing Business”. It presents different laws of the country and the rank of the country. Which law is better to do business? The country which was first last year is Singapore. After Hong Kong, New Zealand, USA, Denmark.

In the world, 5 states are Common law countries (UK, USA, New Zealand, Australia, Canada). They have a legal system based on the Common law; they have been built following the models of the English legal system. This law is considered to be very good law for businessman. We should have to understand why Common Law is important.

What Common Law is? To study the English Legal System it’s useful for our future practice to become a business lawyer. Another reason is to understand the influence that English Law can have or had on our French system.

Example to illustrate this influence: A trust in English Law is the institution which characterized the most what English Law is. It’s a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or allof his or her property to a trustee. The trustee holds that property for the trust’s beneficiaries.

This is a way for having a property which is very common. We find trust in wills (testament). We can find also trust in sports. A competition is founded on a trust. The honors of this competition donate to the American’s cup a specific document to the New York club. Trust is very useful. It’s not a contract exactly; it’s a way to have property.

We don’t have trust in French law. It’s a mechanism that works very well and French businessman looking at English businessman. In business, there as a increase pressure. In 2007, a French law created the “fiducie” (trust) = “confiance”.

The institutions of the trust have been absorbed by the French institutions which create his own trust: “fiducie”. This example illustrates that this course is useful to understand better our French law, civil law.There is a clear influence of the English legal system on the French legal system.

Fiducie = Contrat par lequel un constituant (ou fiduciant) transfère temporairement la propriété de biens ou de droits à un fiduciaire, à charge pour ce dernier d’agir dans l’intérêt du constituant ou d’autres bénéficiaires ou dans un but déterminé (définition Wiktionnaire).

The story of the UK :

English legal system: the exact title of the country is the United Kingdom of Great Britain and Northern Ireland. It consists of 4 countries: Wales, England, Northern Ireland and Scotland.

A) Wales:

Wales differs from the other countries in the legal system since 1535. With the United Kingdom act Wales became annexed by England. Wales has his own legal system since the 16th century.Differences between England and Wales when Wales was annexed by England.

B) Scotland:

Scotland is a country who has joined the UK as a result of an Act of Union in 1707, the Parliaments are for both countries: England and Scotland. This act joined the kingdom of England and the kingdom of Scotland into a United Kingdom named Great Britain.There is a Common parliament. It creates a Parliament for United Kingdom. There was a Scottish parliament, with this act it disappeared, and this act preserved Scottish law. Scottish law is quite different that Law of England. Scotland has shared legislature with England and Wales.

There was no more Scottish parliament. In the late of 20th century, there was some political pressure in Scotland to get back in his legislature power. Scotland has recovered his own parliament through a devolution process who started in 1997. A referendum was organized and the question was: do you want a Scottish parliament or not? Scottish voted yes (70%), they want back. In 1998, the Scotland Act was acted and created again the Scottish parliament. After a break or 3 hundred years Scottish parliament was born again.

However, Scottish parliament can act his legislation only in certain matters: matters concerning health (culture, education, social work, tourism) and some matters are reserved to the central government (defense, national security, tax system). The distinction isn’t so strict, they can have debates but they can’t vote on it. It should have the consent of Scottish parliament for Westminster parliament. The Westminster parliament is the parliament of United Kingdom, he can create Scottish law but there is no automatic assumption that laws passed in Westminster to Scotland.

C) Northern Ireland:

Northern Ireland is the most recent addition to the UK. It was created in 1920. It was a member of UK as a result of the Act of Union in 1801. The whole country of Ireland has become a part of the UK and after wars, long battle in 1920 the Ireland was separated, partitioned into Northern Ireland and Southern Ireland (EIRE). Northern Ireland did the same as Scotland. Since 1998 the Northern Ireland assembly is the devolved legislature of Northern Ireland. Since the Northern Ireland Act in 1998, the good Friday agreement, more responsibility are for Northern Ireland have been given to this assembly.

This countries can enact their own law for specific matters but we should remember that the Westminster parliament reminds the Parliament of the UK and expressly preserved the rights of Westminster to path legislature. When an act is enacted in Westminster, and is applicable in Northern Ireland and Scotland, it’s called the extent.If an act is extent, there is no sections with in the act that discussed the extension. This geographical and historical reminder was useful to remember what English law is.

The influence of English Law is still important in Canada.

Private Law:

Private Law: distinction between private (citizens) and public (despite exist between state and individual) law is the same as the one we make in French Law. Private law concerns dispute that exists between citizens and public law concerns dispute that exist between the states and the individual.

Some famous jurist as DICEYstated that there was no such thing as administration law in England. He meant to a contrast position with the continental based system which has always believed that there is a distinction between private law and public law. There has been some controversy in the 19th century about the distinction should be made or not. For him, there is a difference between public and private law but all people are equivalent in front of law.

Nowadays it’s quite clear that there is a specific distinction. A specific court (administrative court) has been created.The Administrative Court was created to apply specific body of law.The system can be divided in a public and a private law.

System: it’s not a word very commonly used in French law. The system describes how the law is to be applied and created. It envelops procedural law and court system.