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. .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,
Why is it an interest for this state?
The competition takes place between laws of the states. 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). . 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: in English Law is the institution which characterized the most what English Law is.
This is a way for having a property which is very common. . The honors of this competition donate to the American’s cup a specific document to the New York club. Trust is very useful.
We don’t have trust in French law. It’s a mechanism that works very well and French businessman looking at English businessman.
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.
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
Wales differs from the other countries in the legal system since 1535. .Differences between England and Wales when Wales was annexed by England.
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 .There is a Common parliament. . There was a Scottish parliament, with this act it disappeared, and this act preserved Scottish law.
There was no more Scottish parliament. . A was organized and the question was: do you want a Scottish parliament or not? Scottish voted yes (70%), they want back. 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 (defense, national security, tax system). The distinction isn’t so strict, they can have but they on it. . 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 a member of UK as a result of . The whole country of Ireland has become a part of the UK and after wars, long battle Northern Ireland did the same as Scotland. Since 1998 the Northern Ireland assembly is the devolved legislature of Northern Ireland. Since the the good Friday agreement, more
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. 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: distinction between private (citizens) and public ( law is the same as the one we make in French Law.
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.
Nowadays it’s quite clear that there is a specific distinction. A specific court (administrative court) has been created.
System: it’s not a word very commonly used in French law.
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system