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◀︎Judges and the law

Introduction

This course looks at how judges make laws, how the common law system works and the ins and outs of a system like the UK's which relies heavily on such rules and rule making. The course will outline the fundamental differences between civil code systems and common law systems and will consider the relationship between judicial law and statutory law.

This OpenLearn course provides an example of Level 1 learning inlei.

learning successes

After studying this degree, you should be able to:

• understand what a common law system means

• demonstrate a good knowledge and understanding of what common law is and how its rules are made and modified

• discuss how to change or avoid a precedent

• identify thereason for the fallyfor righta lawsuit

• read and analyze legal material (cases, laws and scientific commentaries).

1 The role of the courts and the judiciary

This course examines the role of the courts and judiciary in England and Wales. The English legal system is often referred to as the "common law" legal system. Before the Middle Ages, law in what we now call Great Britain was largely regional. Different regional kingdoms had different laws. In time, judges applied the same law throughout the kingdom established after 1066, so it was common in all parts of the country. This was called "common law". (Common law is a system followed in many countries: Canada, Australia, India, New Zealand and the United States, to name a few, but we will focus on its development in England and Wales.)

This means that many of our primary legal principles were established and developed by judges (rather than Parliament) on a case-by-case basis, in what is known as the system oflast case, where lower courts are required to follow principles established by higher courts in previous cases. Common law (or judges' law) is at least as important to us as law passed by Parliament. For example, there is no Act of Parliament that tells us that murder is a crime; It is a common law offense that has been perfected by judges over the centuries.

Another important role of the judiciary is the interpretation of the law. Although the meaning of the law should be clear and concise in a law, this is not always achieved. Many cases go to court because of the meaning of a word in a law. For example, the Dangerous Dogs Act of 1991 includes the phrase "any dog ​​of the type known as a pit bull terrier", but does not say whether "type" means the same thing as "breed". To help interpret the laws, the judiciary has developed a set of rules: the literal rule, the golden rule, the harm rule, and the intentional approach. They all take slightly different approaches, and the judiciary does not always agree on which approach to use; therefore, the interpretation of a law may depend on the judge handling the case. However, once this interpretation is made, it can set a precedent for later cases.

Finally, this course examines how the common law system works, the fundamental differences between the civil code (continental) and common law systems, and the advantages and disadvantages of the common law system, which is highly dependent on the rules and regulations that support the development of standards. This course examines the role of the judiciary in the legislative process, examining the historical origins of the common law, the system of precedent, and the rules of legal interpretation.

The law of England and Wales has developed over many centuries. There are several ways to create and develop the law. As you will see, historically the most important influences have been local customs and judges. As Parliament gained power in the 18th century, statutes became an important source of new legislation. Judicial decisions continued to be important as they filled in the gaps where written law did not exist and interpreted the meaning of written law. This course examines some of these court decisions.

2 Part A Historical development of common law

2.1 The history of common law

Prior to the Norman conquest of England in 1066, there was no unified national legal system. Prior to 1066, the English legal system comprised a variety of oral customary rules that varied by region. the law ofmillionin the south of England, for example, was different fromMercianerin the center of the country (see map below). Each county had its own local court that exercised its own jurisdiction in accordance with local customs, which varied from parish to parish and were often arbitrarily applied. For example, courts often consisted of informal courtspublic meetingswhich weighed conflicting claims in a case and, if unable to reach a decision, might require the defendant to prove his guilt or innocence by carrying a red-hot iron, or lifting a stone from a kettle of boiling water, or some other form of "evidence". ." " " of correction. If the defendant's wound healed within a prescribed time, he was presumed not guilty; If not, execution usually took place.

Unlike continental civil law, the English system does not go back to a specific collection of texts, but to what is called "tradition expressed in action". It began as common law used in the king's court to resolve disputes and conflicts that directly affected the monarch. At first, this only included the most serious crimes, which became the foundations of the Crown. After the Norman Invasion there were many different types of courts alongside the royal court, for example the Devon and Cornish tinnary courts (tin mining), the royal hunting forest courts, but mostly in potential rivalry with the royal court, were the feudal courts and manorial courts. During the reign of Henry II, his court clergy began to specialize in legal matters and to act as judges. Clerics were part of the king's royal entourage.

In 1154, Henry II institutionalized common law, creating a unified "common" judicial system for the country, incorporating local customs and raising them to the national level, ending local control, abolishing arbitrary remedies, and reintroducing aJuryCitizen oath system for investigating criminal complaints and civil proceedings. The empire's judges made regular trips across the land to bring the king's justice to all citizens. His goal was for there to be a common legal system across the country, so the laws became known as common law. The itinerant judges formed a core of judges with national jurisdiction who had no local roots. Thus they were much less susceptible to corruption, which thwarted a similar attempt in the early 12th century in which royal judges were stationed in local parishes. Under Henry II, judges were sent first to the "circuits" to hear petitions and do the work of local courts in the most important places they visited. Over time, the judges' decisions were written down. As the decisions of these courts were recorded and made public, the practice developed that previous decisions (precedents) were cited before the courts as an argument and considered persuasive.

These practices became the Common Law of England, the law available throughout the empire. Perhaps the most compelling reason that Henry II should be considered the "father of the common law" is that he was largely responsible for the regional and itinerant system of royal justice that made the law truly universal, available to all. It is true that Henry II, who reigned from 1154 to 1189, did many important things to promote the development of common law, for example by popularizing the royal court. However, we do not know how the royal court (called theReal cut) acted before Henry II during the Norman period, as the oldest documents date from his reign, so it might be presumptuous to attribute too much to Henry II. In any case, many factors of a general historical nature contributed to the development of common law, and it may be more meaningful to speak of the various parts that helped nurture common law from its first green shoots to its full flowering. than trying to find a "father".

The clergy played an important role in expanding the king's legal powers. They developed a set of request forms, calledhe writes, and established procedures that gave them, perhaps significantly, greater importance and provided them with a large income! Another important development was, for example, the expansion of the "real peace'. This was the right of the monarch, as opposed to a local lord, to deal with local riots or crimes.

Another reason the royal courts gained much business, and therefore power, was the interpretation of the Charter of Gloucester (1278) by the royal judges. This act stipulated that no cases involving an amount of less than 40 shillings were to be brought before the royal courts, but rather they were to be tried in local courts. The judges interpreted this to mean that no personal action could be brought in the local courts to collect more than 40 shillings, leaving all important cases to them. What is relevant here is that the judges were eager to win the litigants, as their fees varied according to the size of the deals made.

The distinguishing feature of the common law is that it is the law of the courts as expressed in judicial decisions. The reasons for deciding cases are based on the principles of previous judicial decisions, as opposed to a system based solely on law. In addition to the system of precedent, other features of common law include trial by jury and the rule of law doctrine. Originally, the supremacy of law meant that not even the king was above the law; Today, this means that the actions of government agencies and ministers can be challenged in court.

2.2 Use of language

The use of language is of great importance in law. As a law student, it is important that you use the language correctly. Therefore, the remainder of Part A of this course addresses the importance of language in law.

Now I would ask you to try the first four tasks where you are asked to use dictionaries. When we introduce a technical term or term, I will give a definition of it. However, you may not be sure of the meaning of some other words in this course. (The same applies to courses in associated law.)

If you go to a large bookstore and go to the section called something like "Dictionaries and Reference Books", you will see a wide variety of dictionaries. Some are general dictionaries and some are specialized, e.g. B. a science dictionary.

You may also find that there are a wide variety of dictionaries available online.

2.2.1 Prefixes and Suffixes

Prefixes and suffixes can provide clues to the meaning of words. Prefixes go before the main part of the word:

• In "prenatal", "ante" is a prefix meaning "before", and the full word means "before birth".

Suffixes are added to the end of the word:

• -ive, -ing, -ness, and -ion are all suffixes and are used to form words like active, willing, willing, and action.

Note: These activities are taken from The Effective Use of English, Open University Student Toolkit 1.

2.3 Summary of Part A

In Part A you learned:

• that the English legal system is a common law system;

• that this means that much of the law has been developed by the courts over time;

• How to develop language use.

part Blast case

3.1 Introduction

Precedent is the basis of common law. The doctrine of binding precedent is known as the doctrine ofHe decided, which is Latin and means "to stay out/stick to decided cases", i.e. to follow precedent. In other words, once a principle has been decided, it must be followed in future cases. The doctrine refers to the fact that, within the hierarchical structure of English courts, the decision of a higher court is binding on a lower court. In general, this means that when judges hear cases, they look to see if a similar situation has already been heard in court. If the precedent was established by a court equal to or superior to the court hearing the new case, the judge in the present action must follow the rule of law established in the previous case. If the precedent came from a lower court, the new case judge may not follow it, but will certainly consider it.

This precedent system consists of three main elements:

• the hierarchy of the courts

• binding precedent

• Accurate legal reporting.

3.2 The hierarchy of the courts

A hierarchy of courts determines which decisions are binding on which courts. There are some exceptions and complications below, but in general and for most purposes, the higher a court is in the hierarchy, the more authoritative its decisions will be. I mean "authoritative" in the sense that the decisions of higher courts oblige lower courts to apply the same established principle.

Activity 5 challenges you to explore the structure of the court even further.

3.3 Structure of the court system in England and Wales

3.3.1 Supreme Court of the United Kingdom

This is the UK's highest Court of Appeal and was created by the Constitutional Reform Act 2005. The court took office on 1 October 2009. In general, approval of an appeal must be sought before it can be heard. to the Supreme Court of the United Kingdom.

As the Supreme Court of Appeals, it decides legal issues of general public importance and focuses on cases of the highest public and constitutional importance. Its decisions are binding on all lower courts in the judicial hierarchy. By focusing on legal issues of public importance and cases of the highest public and constitutional importance, the court makes decisions that help shape society. The Court:

• is the final court of appeal for all civil matters in the UK
• is the final court of appeal for all criminal cases in England
• Wales and Northern Ireland (but not Scotland)
• it is the final arbiter of decentralization issues.

The remainder of this course relates to the House of Lords. Until 1 October 2009, the House of Lords was the highest court of appeal in England and Wales. Therefore, the powers and rules of the former House of Lords are still relevant to your studies.

To begin with, I'd like to ask you to consider some basic questions about education.

Note: These two activities are from Expanding and Developing Your Thinking Skills, Open University Student Toolkit 9.

3.3.2 The style of legal cases

Activity 8 asks you to read Reading 1: A short excerpt fromthe english legal system(Slapper and Kelly, 2003) – and identify what you think the benefits are of allowing the House of Lords to overrule its past decisions. This excerpt gives examples of cases where the House of Lords did not follow its own previous decisions.

This may be the first time you read a legal case name. Case names are written in a specific style. The first case mentioned in Reading 1 is, for example,Conway contra Rimmer(1968). The "v" in the middle stands for versus, which is Latin for "against". On both sides are the names of the parties. The first name is the person or organization that filed the case. If it is a civil case, this person is referred to as therequester(formerly calledplaintiff) and the other part is called dieaccused. In criminal proceedings, the person responsible for the proceedings is appointedfiscal, and the other person's name is dieaccused. in that caseR contra Smith, the "R" stands forrex(Latin for king) theregina(Latin for queen) and shows that the case is an accusation of the crown, that is, of the state. The year 1968 refers to the year the case was reported, and we will address the issue of case reporting later in this course.

You must read Lesson 1 at least twice. The first time you try to get an overview of what the reading says. You should then read the question again and on the second reading make some notes and extract relevant information and arguments from the reading to answer the question.

3.3.3 The Court of Appeal

The Court of Appeal is always bound by previous decisions of the House of Lords.

In principle, the court of appeal is also bound by its own preliminary decision. However, there are a number of exceptions to this general rule. Lord Greene MR has listed these exceptions atYoung gegen Bristol Airplane Co. Ltd(1944).

It is not important that you read this case at this point. The exceptions given are important:

• In a conflict between two previous decisions of the Court of Appeals.

  In this situation, the ultimate court must decide which decision to follow and whichcancel. One of the reasons why there may be two previous Court of Appeals decisions that seem to say different things about the same law is that the second of the two cases may simply not have been aware of the first when it made its decision.

• If a previous decision of the Court of Appeals has been reversed, expressly or by implication, by the House of Lords.

  Obviously, an express override would occur if the House of Lords did indeed treat the Court of Appeals as a precedent, but it is equally possible that a Court of Appeal precedent could be overturned without the actual case being cited and examined. In this situation, the Court of Appeal must follow the decision of the House of Lords, in accordance with the usual rules of precedent.

• Where the previous decision was madesloppily(Latin for "by mistake").

  In other words, this earlier decision was made in ignorance of any authority, whether in law or case law, that would have led to a different conclusion. In this situation, the subsequent court may overrule the previous decision in question. The lack of authority must be so important that it would have led to a different conclusion; the mere possibility is not enough. There are so many authoritative cases that it is simply not possible to cite them all in a single case. What is decisive, however, is the lack of any consideration of the essential instancessloppily. Cases of decisions ignored by judgment ofsloppilythey are very rare

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• The European Communities Act 1972 gives the Court of Appeal a reason to ignore any of its earlier decisions that conflict with later decisions of the European Court of Justice.

  In fact, this coincides with theeuropean court of justicein the traditional hierarchical structure in terms of precedence as a court of last resortEuropean Unionshe cares.

• Section 2 of the Human Rights Act 1998 requires all courts and tribunals to record any judgment, decision, statement or opinion of theEuropean Court of Human Rights.

  The Human Rights Act 1998 makes decisions of the European Court of Human Rights directly binding on UK courts. This means that decisions of the European Court of Human Rights will become precedents for UK courts to follow. Any national precedent contradicting a decision of the European Court of Human Rights is now invalid and should not be followed.

3.3.4 Divisional Courts

The legal terminology for these courts is not easy! The Supreme Court is divided into three 'divisions', each dealing with different types of cases: the Family Division, the Chancellery Division (which deals with property and money matters) and the Court of Justice Division. the Queen (who handles cases such as contract settlements). and negligence). However, each of these divisions also has the capacity to act as a court to hear appeals from lower courts, and where judges hold that office, the court is known as the Divisional Court of the Superior Court. Divisional Courts hear appeals from courts and tribunals below them in the hierarchy. They are bound by the teachings ofHe decidedin the usual way and must follow the decisions of the House of Lords and the Court of Appeal. In return, they bind the courts below them in the hierarchy, including common Supreme Court cases. The High Court is also normally bound by its own previous decisions, although in civil matters it may avail itself of the exceptions available to the Court of First Instance. appeal positionYoung gegen Bristol Airplane Co. Ltd(1944). In criminal appeals, the Divisional Court of Queen's Court may refuse to follow its own previous decisions if it considers that the previous decision was incorrect.

3.3.5 The Supreme Court

The Superior Court is also bound by the decisions of the superior courts. Decisions by individual Supreme Court judges are binding on lower courts in the hierarchy, but such decisions are not binding on other Supreme Court judges, although they are strongly persuasive and tend to be enforced in practice. However, Superior Court judges may disagree and come to different conclusions about the law in a given area. The question then becomes: How will a future Supreme Court justice decide which precedent to follow? It is generally accepted, though it is not a rule of law, that if the later decision did indeed take into account the earlier one and give a reason not to follow it, that is the judgment to be followed by subsequent Supreme Court justices.

Of course conflicting decisions at Supreme Court level can be decisively resolved by going to the Court of Appeals and then, if necessary, to the House of Lords, but when you consider the cost of such appeals it is clear why. important for the Superior Court of Justice. Court judges, if only for economic reasons, do not treat their discretion as a license to destabilize the law in a particular area.

With regard to conflicting judgments at the level of the Court of Appeal, the Superior Court judge shall follow the subsequent decision.

Crown courts, county courts, and magistrates' courts cannot set precedent, and their decisions can never be more than compelling authority.

Activity 9 asks you to use what you learned in Reading 2, what you've learned so far in this course, and your own everyday experience to summarize the main advantages and disadvantages of the previous one. You might find the reading language a bit difficult, but don't worry. You don't need to understand everything that has been said, just identify and summarize the main strengths and weaknesses of the foregoing.

Reading 3 is an article that highlights the uncertainty of the law regarding the right of citizens to protect their property. The article analyzes the Tony Martin case and other judicial decisions. You may remember the case of Tony Martin, the Norfolk farmer, who shot and killed a trespasser on his property. As you read Reading 3, keep in mind the conflicting decisions that courts have reached on this unique issue of the right to property protection.

3.3.6 Summary of the Precedent System

The basis of the previous system is the principle ofHe decidedand that requires a subsequent court to use the same reasoning as an earlier court when the two cases raise the same questions of law. For example:

• Decisions of the House of Lords are binding on all other courts in the legal system, except the House of Lords itself.

• The Court of Appeal is bound by previous decisions of the House of Lords. The Court of Appeal is also generally bound by its own past decisions, with the following exceptions:

  1. if there is a conflict between two previous decisions of the Court of Appeal;

  2. if a previous decision of the Court of Appeal has been overturned by the House of Lords;

  3. whether the earlier decision was taken in ignorance of a legal or judicial authority, which would have led to a different conclusion;

  4. if the previous decision is incompatible with European Community law or with a subsequent decision of the Court of Justice of the European Communities;

  5. Section 2 of the Human Rights Act 1998 requires all courts to take account of any judgment, decision, statement or opinion of the European Court of Human Rights.

• Divisional courts must follow the decisions of the House of Lords and the Court of Appeal and are usually also bound by their own past decisions.

• The Superior Court is also bound by the decisions of the superior courts. The decisions of individual judges of the Supreme Court are binding on the lower courts.

Remember, you will also use reading and note-taking skills throughout the course.table 1has been provided to illustrate how this summary could be expressed in an alternative format. You need to find a note-taking style that suits you.

Note that both the district court and magistrates' courts do not set any precedent. You are subject to the decisions of all higher courts.

Meu curso OpenLearn W100_2Parliament and LawThere was an opportunity to read an Act of Parliament. In Activity 11, I want to show you how to read a legal process.

A tip for your studies is to use a highlighter to highlight each case/status name you find in your law school. This makes it easy to find when reviewing a course and also helps you take notes.

Activity 12 requires you to use your Internet skills to access the House of Lords website and review a recent House of Lords decision of your choice. You are asked to note how many Law Lords have passed judgment and how many Law Lords have accepted it.

3.4 Binding precedent

Not everything in a court case sets a precedent. The content of a case report can be divided into two categories:

• 1. The reason for the decision -reason for the fall

• Diereason for the fallof a case is not the actual decision, such as "guilty" or "the defendant is liable for damages". Precedent is defined by the rule of law applied by the judge or judges in deciding the legal issue raised by the facts. This rule, which is an abstraction of the facts of the case, is known asreason for the fallfrom Falls (seebox 4).

• 2.by the way it was said

• In a judgment of case, any statement of law which is not an integral part of thereason for the fallit is strictly superfluous. Each of these statements is denoted asfor right. That's Latin for "a word spoken while traveling" or "en route" (said by the wayin most). Despitesaid by the wayThe statements are not part of the binding precedent, are persuasive and can be considered in later cases if the judge of the subsequent case deems it appropriate (cf.box 5).

Dividing the cases into these two separate parts is a theoretical procedure. Unfortunately, judges don't really divide their judgments into two well-defined categories, and it's up to the person reading the case to determine which they are.RelationshipIt is. It's a bit like listening to or reading a speech by a politician or the manager of a sports team and trying to figure out what the most important part of the speech was.

In some cases this is not an easy question, and it can become even more difficult when there are three or five judges and each judge gives his lengthy verdict, so that there is no unambiguous verdict.Relationship.

In some cases, it may be difficult to identify the case relationship and distinguish between them.Relationshipdosaid by the way.

Activity 13 provides two illustrative examples of how to identify themreason for the fallof court decisions. These examples make it clear that this is a complex task and that there is no uniform procedure for determining theRelationship.

I saw examples of howRelationshipyfor rightare determined in Reading 4, Activity 14 requires you to read and summarize Reading 5Relationshipit's himfor rightof the case in question. Reading 5 deals with a dispute that arose over a television advertisement for Guinness. TV commercial,anticipationshowed a dance routine - You might have seen the commercial that aired on TV in 1993-1994. The dispute concerned whether Guinness copied the dance from a short film called Joy. You'll know it's serious business when students copy each other on a test, or when a student is asked to copy another student's homework or pass off another student's work as their own. So you can understand why Joy's creators were so upset by the idea that their work was copied. Reading 5 is shorter and easier than Reading 4. You should still read the article at least twice and try the following exercise.

Please note that this case was subsequently appealed to the Court of Appeal.

As mentioned above, when passing judgment on cases, judges do not separate or emphasizereason for the fallof the rest of your judgment and this may lead to uncertainty in determiningreason for the fall. This uncertainty is compounded by the fact that the reports of decisions in cases can be very long and, when there are several separate judgments, the judges involved may agree with the decision of the case, but may not agree with the decision. he did. It is up to the judge hearing the case in which a precedent was adduced to determine the balance of powers and thus determine whether or not he or she is bound by the prior case. This factor gives subsequent courts considerable discretion in deciding whether to be bound by any specific authority.

The main mechanisms by which judges modify or avoid precedents are:

• cancel

• differentiate.

3.4.1 Cancellation

Annulment is the process by which a higher court overturns a judicial decision rendered in a previous case.

It is strange that within the system ofHe decided, precedents gain authority over time. As a result, courts tend to be reluctant to overrule long-standing authorities, even when they no longer accurately reflect contemporary practices or morality. While the old tenets of dentistry or computer science are generally not good, they are often seen as such in law! Aside from the desire to maintain a high level of legal certainty, the main reason the judiciary is reluctant to overturn old decisions appears to be that overriding works.retrospectively, whereby the suspended legal principle is never considered a right. It may even lead to prosecution of previously lawful conduct. However, it must be emphasized that the courts will not fail to overrule the authorities if they deem that they are no longer appropriate legal statements.

The decision inR contra R(1992), which recognizes the possibility of marital rape, can be seen as an example of this, although even here the House of Lords felt compelled to say that it is not really changing the law, but simply removing a misunderstanding about the which really means .and effect of the law.

As this suggests, the courts are rarely willing to challenge Parliament's legislative rights openly. An example of this reluctance is the decision of the House of Lords tocurry vs. Chief Prosecutor(1994). Children between the ages of 10 and 14 accused of a crime were not supposed to know that what they had done was a serious crime and that prosecutors should present evidence.refutethis conjecture (this conjecture was known as the doctrine ofdoli incapax, which means "incapable of being wrong"). In an appeal against two children convicted of a motorcycle offence, Lord Justice Mann justified the reversal of the presumption by saying that, although it was often accepted as law, it was never really considered by previous courts.

Because of this reasoning, he felt entitled to depart from previous Court of Appeal decisions that would otherwise have bound him. The House of Lords later reinstated the previous presumption, saying that in any case, to obtain convictions, prosecutors must rebut the presumption that 10- to 14-year-olds do not know the difference between right and wrong. While the Law Lords recognized the problem and indeed appeared sympathetic to Mann LJ's vision, they felt that this significant change was a matter of parliamentary action rather than judicial intervention.

Annulment should not be confused with 'annulment', which is the process by which a higher hierarchical court overturns the decision of a lower court in the same case.

3.4.2 Distinction

Compared to the substitution mechanism, which is rarely used, the main means of avoiding a binding precedent is discrimination. As already mentioned, thereason for the fallin each case on the basis of the essential facts of the case. This opens up the possibility that a court may determine that the facts of the case before it are materially different from the facts of a cited precedent and not feel bound by that precedent. Judges use discrimination when, for some reason, they are unwilling to follow a certain precedent. Legal opinions provide many examples of forced distinctions when a court clearly did not want to follow an authority to which it would otherwise be bound.

3.4.3 Summary of the binding precedent

In this section you saw:

• that not everything in a court case sets a precedent

• the difference betweenreason for the fall(the corresponding statement of legal principles) andfor right(discussion of legal principles that are upheld but not relevant to the decision)

• that the obligatory element in a future case is theRelationshipand that while hefor rightwill never be mandatory, can have strong powers of persuasion

• the situations in which judges do not need to follow previous decisions:

  • void a previous case

  • Breakdown of a previous case.

3.5 Summary of Part B

In Part B you learned the following:

• the system of precedent requires subsequent courts to use the same reasoning as an earlier court when two cases raise the same legal issues;

• The content of a case report can be divided into two categories:

  • reason for the fall– the essential legal principles for the decision. TheRelationshipis the binding element of the case

  • for right– any legal statement that is not an integral part of the judgment. Thefor rightit is never mandatory, but may be persuasive to consider in later cases;

• The main ways that judges can change or avoid precedent are:

  • cancel– if the court overturns a judgment given in a previous case

  • differentiate– If the court distinguishes the facts of the current case as material to previous decisions, the court will not apply the precedent as it is not relevant to the current case.

4Part CCorrect Legal Reports

4.1 Introduction

You cannot cite a judge's precedents and ask them to follow them unless you have a good record of all previous cases and their decisions. Therefore, the operation of a binding precedent is based on the existence of a comprehensive information service that allows access to previous judicial decisions.

This section briefly describes where to find case reports in specific areas of law. This is of particular importance fordefender(usually lawyers, but sometimes solicitors) who have a duty to bring all authorities relevant to the case to the attention of the court, whether they are investigating your case or not, and therefore must conduct a thorough investigation into current reports. It will also be useful for you as a law student.

4.2 Types of reports

4.2.1 Yearbooks (1275-1535)

The first reports of special cases appeared between 1275 and 1535 in so-called annuals. These accounts are of real historical interest as they were originally written in a language known as Legal French. As with common law in general, the emphasis was on procedural issues and forms of defence. Those dedicated to the study of legal history will find the most important cases translated and compiled in the ranks of the Seldon Society or the Rolls series, but in essence they represent a backwater, little navigated by anyone studying modern law.

4.2.2 Private Accounts (1535-1865)

These reports are named because they were produced by individuals and are cited by the name of the person who compiled them. However, they were commercially released for public reference. An ongoing problem with private reports concerns their accuracy. At best, it can be said that some were better, i.e. more accurate than others. Among the earlier reports of particular interest were those by Plowden, Coke, and Burrows, but there are many other reports which are in themselves equivalent to full and accurate reports of the cases brought bytaxatogether with the reasons for the decisions in the individual case. A significant number of private reports have been compiled and published as English reports. The series consists of 178 main volumes: 176 volumes are reports and the last 2 volumes contain an index of all reported cases. Additionally, the reports are accompanied by a helpful wall to make it easy to find individual reports.

4.2.3 Modern reports (1865 to present)

As you've seen, private reporting wasn't without its problems. Aside from at least occasional inaccuracies, publishing could be slow and expensive. This situation was finally remedied with the formation of the Council for Law Reporting in 1865, which was subsequently registered as a body in 1870 as the Incorporated Council of Law Reporting for England and Wales. The board was formed under the auspices of the Inns of Court and the Law Society with the aim of producing reports faster, cheaper and more accurate than ever before.

4.2.4 Legal Reports

These are the case reports prepared by the Incorporated Board of Legal Reports for England and Wales. They have the distinct advantage of containing summaries of the lawyers' arguments and, perhaps most importantly, they can be reviewed by the judges on the case before they are made public. Not surprisingly, Legal Reports are considered the most authoritative reports, and are often preferred over all other reports in court proceedings.

The current Law Reports series, from 1891, is published annually in four parts:

Of course, delays in notification may result in cases decided in one year not being notified until the following year. Since the beginning of the current series, individual report volumes have the year of publication in square brackets and, if necessary, a volume number. Therefore, cases are cited by the year and volume of their publication rather than by the year of their decision.

4.2.5 Weekly Statutory Reports (WLR citation)

These too have been published by the Incorporated Council on Legal Reports since 1953, and although they are not reports of cases decided in the current week, as the name suggests, they are produced much more quickly than Legal Reports. The need for speed means that these reports do not contain the arguments of the lawyers, nor do they enjoy the benefit of judicial correction before going to print. There are four volumes of cases reported, the last two containing the cases that will also appear in the Legal Reports.

4.2.6 All legal reports in English (Lite all ERs)

These summaries are prepared by Butterworth's legal editor and, while subject to judicial review, do not contain the attorneys' arguments. They appear weekly and are compiled into volumes annually.

4.2.7 Legal magazines and journals

Dielegal magazine(Sol Jo or SJ) has reported cases since 1856 and some cases are only found in their reports. In such cases, reports may be subpoenaed in court. The same applies to cases reported in other journals, such asnew legal magazine(NLJ) or other legal journals.

Reports in large-format newspapers (the times, guardyIndependentlyfor example) may also be subpoenaed in such circumstances, provided they are brought by suitably qualified persons (the Courts and Legal Services Act 1990 extended this right to solicitors and solicitors). However, some of these reports are quite insubstantial in nature.

4.2.8 Technical reports

There are several technical reports. There are actually more than can be mentioned here, but the most important ones include:

4.2.9 European Community Reports

Although European cases may appear in the reports considered above, there are two technical reports that refer to EU cases.

• European Court Records (ECR)

  These are the official reports of the European Court of Justice. As such, they are produced in all official Community languages ​​and therefore experience delays in notification.

• Common Market Act Reports (CMLR)

  These are unofficial reports published weekly in English by the European Law Centre.

Reports from the European Court of Human Rights in Strasbourg are included in the European Human Rights Reports (EHRR).

4.2.10 DVD-ROM and Internet facilities

As in most other fields, the growth of information technology has revolutionized legal reporting and legal discovery. Many of the above legal reports are available on DVD-ROM and on the internet from legal databases such as Justis, Lawtel, Lexis-Nexis and Westlaw UK. However, many of these databases require you to register and service fees may apply. Alternatively, they may be available free of charge to university students enrolled in recognized and accredited courses. You will find that many case databases are not available to you.

The first major electronic case database was the Lexis system, which provided instant access to a wide range of case authorities, some not reported elsewhere. The problem for the courts was that lawyers with access to the system could simply cite lists of cases from the database without the courts having access to hard copies of the decisions. The courts soon expressed their displeasure at this indiscriminate citation of undeclared numbers from the Lexis database (cf.Stanley Gegen International Harvester Co. of Great Britain Ltd.(1983)).

4.2.11 Neutral quotation

As the entire legal system has continued to modernize, the way cases are cited has changed. Since January 2001 a new neutral system has been introduced and cases in various courts are now cited as follows ('EW' stands for England and Wales):

In the individual case, the paragraphs of each sentence are numbered consecutively; in the case of several sentences, the paragraph numbering continues consecutively. For example, the neutral quote forInternational Transport Roth GmbH Gegen Secretary of State for the Ministry of the Interioris [2002] EWCA Civ 158 and if you look up Simon Browne LJ's quote from the case you will find it at paragraph 53. The specific series of Legal Reports reporting the case is at [2002] 3WLR344.

4.3 Summary of Detailed Legislative Reports

This section has emphasized the importance of accurate legal information that allows legal principles to be collected, identified and made accessible. I researched where case reports can be found in specific areas of law. These are:

• Annuals (1275-1535)

• Private Accounts (1535-1865)

• Modern accounts (1865 to present)

• He informs her

• Weekly statutory reports (WLR citation)

• All legal reports in English (Lite all ERs)

• Legal magazines and journals.

• technical reports

• European Community Reports

• DVD-ROM and Internet facilities.

4.4 Summary of Part C

In Part C you learned the following:

• Accurate legal reports allow compilation, identification and access to legal principles;

• There are many sources for legal reports: annuals (1275-1535), private reports (1535-1865), modern reports (1865 to date), Law Reports, Weekly Law Reports, All England Law Reports, law magazines and journals, About the European Community reports available on the Internet, DVD-ROM and legal databases.

5 Part D The need for legal interpretation

5.1 Reasons for unclear meaning

The meaning of the law in a law must be clear and concise, but this is not always achieved. Therefore, many cases brought to court involve disputes over the meaning of a word or phrase in a law. In these cases, the court's job is to determine the exact meaning of that particular word or phrase. There are a number of factors that can lead to unclear meaning.

• another term- There may be words intended to cover multiple possibilities and it is up to the user to judge which situations fit them.

• ambiguity– A word can have two or more meanings and it may not be clear which one to use.

• an editing error– The Parliamentary Council that drafted the original bill may have made a mistake that went unnoticed by Parliament. This is more likely to be the case when a bill has been amended multiple times during debates.

• The wording may be insufficient– The wording can be inappropriate in many ways, for example, a typo or other error such as using a broad meaning word that is not defined.

• new developments– New technology may mean that an old Act of Parliament obviously does not cover current situations.

• changes in language use– The meaning of words can change over the years.

• Certain words are not used- Rapporteurs may omit the use of certain words that they consider to be implicit. The problem here is that users might not realize this is the case.

• Lack of legislation to cover a specific point– The legislation may have been worded in detail, with the rapporteur trying to cover all possible eventualities. However, situations not expressly foreseen may arise. The question then is whether the court should interpret the legislation to include the missing situation or whether it should limit the legislation to the precise points laid down by Parliament.

In all legislation there is the possibility that words and phrases generate uncertainties that can only be resolved through judicial interpretation. This interpretation is a creative process and inevitably involves the judiciary in the process of seeking justice.

The question arises of what techniques judges should use since they need to define this term or phrase. A set of rules has been developed to assist judges in this process, the Rules of Interpretation. These were drawn up by the judges themselves over the centuries and Parliament had no role in their development. However, it can be argued that Parliament remains the supreme legislative body. If you don't like the definition created by the court, you can choose to pass new legislation that reverses the court's decision.

5.2 Summary of Part D

Part D looked at several of the reasons why a word or phrase in an Act of Parliament might have an unclear meaning. This is illustrated with a series of examples. The interpretation of these words or phrases becomes the task of the courts. In this role, it can be argued that the courts are involved in the legislative process, as they have a duty to interpret and define a law.

6 Part E The Rules of Legislative Interpretation

6.1 Introduction

In this part, we will examine the number of rules that courts have developed to help interpret a law. These are:

• the literal rule

• the golden rule

• the rule of evil

• the directed approach.

  (Video) Judges and the judiciary

Each of these rules takes a different approach to interpreting a law. Some judges prefer one rule while other judges prefer another. Some judges also believe that it is their job to fill in the gaps and ambiguities in the law, while others believe that this should be left to Parliament as the supreme legislator. As the rules can lead to very different decisions, it is important to understand each one and how to use them.

6.2 The literal rule

Under this rule, the judge considers what the law actually says, not what it might mean. For this, the judge will give a literal meaning to the words of the law, that is, their simple and everyday meaning, even if this leads to a result that could otherwise be seen as unfair or undesirable. The literal rule is that the intention of Parliament is best found in the common and natural meaning of the words used. As the democratic legislative part of the state, Parliament must make it clear that it wants to enforce exactly what it says in its statutes. Allowing judges to give obvious or non-literal meaning to words in the Act of Parliament goes against the will of Parliament and therefore the people. Lord Diplock once commented:

The use of the literal rule is illustrated by the caseFischer contra Bell(1960). The Offensive Weapons Restriction Act 1959 made it a crime to offer certain offensive weapons, including knives. James Bell, a Bristol merchant, displayed such a weapon in the window of his shop in the Broadmead gallery. The Divisional Court ruled that he could not be convicted because Mr. Bell did not offer the knives for sale in order to give the statute's words a limited literal meaning. In contract law, technically placing something in a store is not an offer to sell; it is simply an invitation to treatment. (A request for an offer is an invitation for others to make an offer, such as displaying products in a store window.) It is the customer who offers the store an offer when they offer money for an item for sale. The court confirmed that the dealer had not made an offer to sell in the literal sense of the offer and was therefore not guilty of the offence. Parliament then changed the law to make it clear that displaying a switchblade knife in a shop window is a criminal offence.

The literal rule has advantages and disadvantages. Constitutionally, it respects parliamentary supremacy and the right of Parliament to make whatever laws it wants, no matter how absurd they may seem. It also encourages accuracy in wording and ensures that anyone who can read English can determine the law, which promotes legal certainty and reduces litigation. However, some disadvantages can also be identified. He fails to recognize that the English language itself is ambiguous and that words can have different meanings in different contexts. Sometimes, the application of this rule can lead to absurdities and loopholes that can be exploited by an unfounded litigant. Judges tend to overemphasize the literal meaning of legal provisions without giving due weight to their meaning in a broader context. Emphasis on the literal meaning of words requires unrivaled perfection in design. Finally, ignore language limitations.

6.3 The golden rule

This rule is a modification of the literal rule. It states that if the literal rule leads to an absurdity, the court must seek a different meaning of the words to avoid that absurd result. The rule was strictly defined by Lord WensleydaleGray contra Pearson(1857) HL Cas 61, which stated:

The rule was used in the case ofeagle vs george(1964) to avoid an absurd result. Under Section 3 of the Official Secrets Act 1920, it was an offense to obstruct HM Forces near a prohibited location. In fact, Mr. Frank Adler was arrested obstructing such forces in such a forbidden place (Markham Royal Air Force Station, Norfolk). He argued that he was not near a prohibited location because he was in fact in a prohibited location. The court applied the golden rule to expand the literal wording of the law to cover the act committed by the defendant. If the literal rule had been applied, it would have led to absurdity, as whoever protested near the base would commit an infraction and whoever protested there would not.

Re Sigsworth(1935) concerned a case in which a son had murdered his mother. The mother had not made a will and, according to the Administration of Justice Act 1925, her estate would be inherited by the next of kin, ie her son. There was no ambiguity in the wording of the law, but the court was unwilling to allow the son who murdered his mother to profit from his crime. It was said that the literal rule should not be applied, and the golden rule should be applied to prevent the son's loathsome situation from inheriting.

The golden rule does not provide a clear means of proving the existence or magnitude of an absurdity. It seems to depend on the outcome of each case. So while the golden rule has the advantage of avoiding nonsense, it has the disadvantage of not having a test to determine what is nonsense.

6.4 The rule of misfortune

This third rule gives the judge more discretion than the literal rule or the golden rule. This rule requires the court to examine what the law was before it was passed to determine what loophole or absurdity the law was intended to fill. The court must then interpret the law to ensure that the loophole is filled. The rule is contained inremains of heydon(1584), who states that there are four things to consider for the true interpretation of a law:

1. What was common law before law was made?

2. What was the error and deficiency which the common law did not provide for?

3. What remedy did Parliament decide and recommend to cure the Commonwealth's disease?

4. The real reason for the remedy; and then it is the work of the judges to make such constructions as to suppress the evil and propose the remedy.

This rule gives the court the justification to go beyond the letter of the law to consider the problem the law was intended to solve. On one level, it is clearly the most flexible rule of interpretation, but it boils down to using prior common law to determine what malpractice the law in question was intended to correct. The case itself concerned a dispute over the laws enacted by Henry VIII in 1540 and a lawsuit against Heydon for encroachment on certain lands in the county of Devon.

An example of applying the damage rule can be found in the case ofCorkery v. Zimmerman(1951). In 1951, Shane Corkery was sentenced to one month in prison for riding his bicycle in public while intoxicated. Around 2:45 pm. On 18 January 1950 the defendant was drunk pushing his bicycle down Broad Street in Ilfracombe. He was subsequently charged under Section 12 of the Licensing Act 1872 for being drunk to a carriage. The 1872 Act didn't actually refer to bicycles. The court decided to use the calamity rule to decide the matter. The purpose of the law was to prevent people from using public transport of any kind while intoxicated. The bicycle was clearly a means of transport and therefore the user was charged correctly.

6.5 The targeted approach

This approach has emerged more recently. Here, the court is not just looking to see where the loophole was in the old law, but is making a decision about what it thought Parliament was trying to achieve. Lord Denning in the Court of Appeal stated inMagor and St Mellons Rural District Council v Newport Corporation(1950), "we sit here to discover the intent of Parliament and ministers and to carry it out, and we do this best by filling in the blanks and making sense of the decree, opening it up to destructive analysis".

This attitude was criticized on appeal by the House of Lords. Lord Simmons called this approach "a naked usurpation of the legislative function under the thin cloak of interpretation". He went on to say that "when a loophole is discovered, the remedy is in an amendment bill".

These comments highlight a problem with the specific approach. How to determine Parliament's intentions and whether judges should really refuse to follow Parliament's clear words. The specific approach is used by most continental European countries when interpreting their own legislation. This is also the approach taken by the European Court of Justice when interpreting EU law.

Since the UK became a member of the European Economic Community in 1973, the influence of the European preference for the specific approach has influenced English courts in a number of ways. First, the courts had to accept that, from 1973 onwards, the specific approach would be applied when deciding EU issues. Second, they get used to using the specific approach of EU legislation and are more likely to use it to interpret national legislation. an example isPickstone gegen Freemans plc(1998). Here, female clerks are paid the same as male clerks. However, Miss Pickstone asserted that the work of the warehouse workers was of equal value to that of the warehouse controllers, who earned £1.22 a week more than they did. Employers argued that a warehouse worker was employed in the same job as warehouse workers and could not claim work of equal value under Section 1(2)(c) of the Equal Pay Act 1970. This was a literal interpretation of the 1970 Statute The House of Lords ruled that the literal approach would have resulted in the UK in breach of its treaty obligations to implement an EU directive. Therefore, he applied the purpose-based approach and concluded that Ms. Pickstone had rights based on work of equal value, despite the fact that a male employee was doing the same job as her.

In applying any of the rules of interpretation of the law, the courts may resort to a presumption or secondary decision-making aids.

6.5.1 Premises

In determining the meaning of certain words, courts will make certain assumptions about the law. When the law clearly states the contrary, the presumption is not valid and is said to be refuted. The main assumptions are:

1. A presumption against changes in common law.

   Common law is presumed to apply unless Parliament has made it clear in law that customary law has been changed.

2. An assumption thatthe real men('guilty thinking') is required in criminal cases.

   Male Salesit is one of the elements that must be proved for a successful prosecution. There is a rule of common law that no one can be convicted of a crime unless it can be shown that they had the requisite intent to commit it.

3. A presumption that the Crown is not bound by any law unless the law specifically says so.

4. Presumption that a law does not apply retroactively. No law applies to past events. Normally, each law only applies from the date it comes into effect. However, this is just conjecture and Parliament may choose to pass legislation retrospectively. However, this must be expressly stated in statutes, for example the War Damages Act 1965, the War Crimes Act 1991 and the Adoption Act 1976.

Secondary tools are language rules, intrinsic and extrinsic tools.

6.6 Language rules

Courts may also choose to examine other words in the law to determine the meaning of specific words. To enable them to do this, they have developed a set of language rules that help clarify the meaning of words and phrases. There are three main language rules:

• the same type

  This rule states that when there is a list of words followed by general words, the general words are restricted to the same type of items as the specific words. In case ofPowell contra Kempton(1899) BC 143, a quadrilateral in a hippodrome was not considered to be included in the terms "house, office, room, or other place" because the word list indicated that "else place" was to be interpreted as an interior place.

• The expression of one is the exclusion of the other.

  Where the explicit mention of one thing excludes others. If there is a list of words that are not followed by common words, the law only applies to items on the list. In case ofR v residents of Sedgley(1831), the use of the words "land, houses, and colliery" precluded application to other types of mines.

• It is recognized by partners.

  A word is known by the company that supports it. The words must be seen in their context and interpreted accordingly. This includes considering other words in the same or other sections of the law. In case ofMuir vs Keay(1875) LR 10 QB 594, the purpose of granting licenses for theatrical or musical performances did not fall within the wording of the Act covering establishments "for public refreshments, recreation and entertainment", since the word "entertainment" in the Act was it referred to refreshment establishments, receptions and accommodation of the public.

6.7 Personal Resources

Intrinsic aids are matters within a law that can help clarify meaning. The court may consider the long title, the short title, and any preamble. Other useful aids might include headings before a group of sections and any calendars attached to the law. Often there are also marginal notes explaining various sections; However, these are generally not considered a declaration of intent by Parliament, as they were inserted after parliamentary debates and are only useful comments from the printer.

Some laws contain sections that specifically define words. For example, Section 5(2) of the Animal Pensions Act 1963 states: "In this Act, animal means any dog ​​or cat." that contain the masculine gender Meaning also includes feminine and words that import feminine gender also include masculine. Furthermore, singular words also include the plural, and plural words include the singular.

6.8 External help

Third party tools are things that can help put a law in context. Sources include previous Acts of Parliament on the same subject, past case law, contemporary dictionaries, and the historical framework. Also, Hansard can now be taken into account. Hansard is the authoritative account of what was said in Parliament when the bill was debated. The use of Hansard was allowed after the decision inPepper (tax inspector) vs. Hart(1993), where the House of Lords accepted that Hansard could be used on a limited basis. Allows the use of hansard when the legislation is ambiguous, unclear or unreasonable and the material on which it is based includes one or more statements by a minister or other supporter of the bill and other parliamentary material relevant to the bill is required. the explanations, the effect and the assertions on which it is based must be clear.

Third party aids also include international conventions, regulations or guidelines implemented by English law. It is understood that English law must be interpreted consistently with international law. Article 3 of the Human Rights Act 1998 expressly states that, as far as possible, a law must be interpreted and implemented consistently with the rights enshrined in the European Convention on Human Rights. This only applies to cases involving human rights.

6.9 Summary of Part E

7 Teil F Common law, equity and statutory law

7.1 Assets

This term refers to a specific division within the English legal system. As the common law advanced, a formality developed among judges characterized by a reluctance to deal with matters that were not dealt with in the proper form of action or that could not be dealt with. Such refusal to deal with injustices that do not fit into special rules of procedure and form generated great dissatisfaction with the legal system. A modern analogy would be with a company or government agency refusing to process your complaint because none of the available forms are suitable, even though they obviously made a mistake. Furthermore, common law courts were considered slow, highly technical and very expensive, and a small error in presenting a case could lose a good argument. The only remedy available was compensation, but monetary compensation was not always the best remedy. How could people get justice if not in the common law courts? The answer was equity development.

Claimants (then called plaintiffs) who did not have access to the common law courts could appeal directly to the Sovereign, and such claims were referred to the Lord Chancellor, acting as "the king's conscience", for consideration and decision. The Chancellor based his decisions on the principles of natural justice and fairness, deciding on what felt "right" in each individual case rather than looking to past precedent. I would look beyond documents held by common law courts to make them legally binding. To ensure that their decisions were fair, new procedures were developed, such as a subpoena that compels a witness to appear in court, and new remedies, such as injunctions and special benefits. This led to the emergence of a special court, the Court of Chancery, formed to make "fair" or "fair" decisions in cases that common law courts were unwilling to handle. The Court of Chancery takes its name from the fact that the court was under the control of the Lord Chancellor. The Court of Chancery was the Court of Chancery intended to provide remedies that were not available in the common law courts.

There were a number of important conditions that a person seeking justice at the Court of Chancery had to meet:

• They had to prove that they could not get justice in the common law courts.

• They had to prove that they were not the culprits. This was called "coming to trial with clean hands". In contrast, plaintiffs who appealed to the old common law courts did not need to prove that they were morally innocent.

• They had to show that they didn't hesitate to take the case to court.

The common law courts and the Court of Chancery functioned separately. Occasionally this led to conflicts, with the common law courts ruling in favor of one party and the Court of Chancery in favor of the other party. This situation was resolved with the case of the Earl of Oxford (1615), when the king decided that justice would prevail in such cases. The separation between the courts of common law and the courts of equity continued until they were finally combined by the judicial acts of 1873-5. Before this legislation, it was imperative that a party presented its case before the competent court: for example, the courts of customary law did not apply the principles of equity, so if a precautionary measure was requested, the case had to be heard in The court. If damages were claimed, the case would have to be tried in the common law courts. However, the statutes provided that each court had the power and duty to decide cases in accordance with common law and equity, the latter being fundamental in the final analysis (Section 25 of the Judiciary Act 1873).

7.2 Statute and common law

“Customary law” refers to the substantive law and procedural rules established by judges through the decisions they hear in cases before them. I have grouped here two types of customary law: substantive law and procedural law. Let me explain the difference between them.

A substantive rule is a rule about our conduct, for example that if we do this and that in an email exchange, we cannot commit murder or enter into a contract. These substantive rules differ from procedural rules, as the latter merely regulate how things should be done. For example, regardless of the type of court proceedings, the rules for admitting evidence in court are the same.

Statutory law, on the other hand, refers to the law created by Parliament in the form of laws. Although the law has grown significantly in the 20th and 21st centuries, the courts continue to play an important role in making and enforcing laws in general and in determining the enforcement of laws in particular. This is despite the fact that there is no explicit legislative or democratic authority for the court to legislate.

Activity 16 requires you to read an article that discusses the role of Parliament and the role of the courts in making laws. This article is longer than previous reads, but don't let that put you off. You will be familiar with the ideas discussed in the reading.

Exercise 1 asks you to apply your understanding and knowledge of common law and describe the importance of the common law system being flexible and secure. You will then be asked to weigh and evaluate the arguments and say whether you think the 'equity computer' discussed in Reading 6 should replace customary law. It's not about finding the "right answer", any more than there is a scientific "right answer" for which is the best political party or soup! It is about being able to justify a point of view that has been reached.

7.3 Summary of Part F

In Part F we compare and contrast:

• common law and equity

• common law and statutory law.

8 Part G Common Law and Civil Law Systems

8.1 The differences between common law and civil law

After exploring the origins and development of the common law and its characteristics, the final part of this course will compare and contrast common law with civil law systems.

The terms common law system and civil law system are used to distinguish two different legal systems and legal approaches. The use of the term 'common law' in this context refers to any legal system that has inherited the historic English legal system. First is the United States, of course, but many other Commonwealth and ex-Commonwealth countries maintain a common law system. The term "civil law" refers to other jurisdictions that have adopted the continental European legal system, which derives essentially from ancient Roman law but is largely due to the Germanic tradition.

The usual distinction between the two systems is that the common law system tends to be case-centric and therefore judge-centric, allowing for a discretionary and pragmatic approach to the specific issues that come before the courts. The law can be developed on a case-by-case basis. The civil law system, on the other hand, is more of a codified set of general abstract principles that govern the exercise of judicial discretion. In reality, these two views are extremes, as the first overestimates the degree to which common law judges can exercise their discretion and the second underestimates the degree to which civil law judges have the power to exercise their discretion. discretionary. It is perhaps worth noting here that the European Court of Justice, which in theory was based on civil law principles, in practice increasingly recognizes the advantages of establishing a jurisdiction. The Court of Justice of the European Communities is not bound by the application of the doctrineHe decided, still does not decide on individual cases without resorting to its previous decisions.

8.2 Summary of Part G

In Part G, you examined the difference between common law and civil law.

9 Part H Consolidation

The purpose of this part is to bring together your knowledge of law in the English legal system. A series of activities will give you the opportunity to review and consolidate your prior knowledge of the English legal system.

The final activity will help you further solidify your study of this course by considering two controversial cases that have received a lot of media coverage.

Conclusion

This free course provides an introduction to the study of law. It guided him through a series of exercises designed to develop his approach to teaching and distance education and helped him build his confidence as an independent learner.

references

Cowie, F. e Bradney, A. (2000),English legal system in context, Londres, Butterworths, págs. 88–90.

"Expand and develop your thinking skills"Open University Student Toolkit 9.

Slapper, G. (2000) "Castles Built on Law",new legal magazine, June 23.

Slapper, G. e Kelly, D. (2003)the english legal system, London, Cavendish, pp. 75–7 and 84–8.

"Effective use of English",Open University Student Toolkit 1.

"¿Genio o plagio?" (1998)The times, 25.8.

"The Law Factories" (2002)The times, October 29th.

Gracias

The content mentioned below is copyrighted (seeTerms and conditions) and is included in aCreative Commons Attribution-NonCommercial-ShareAlike 4.0 License

Thanks to the following sources for permission to reproduce material from this course:

Content acknowledged below is copyrighted and used under license.

course image:eric kilbyavailable on Flickr atCreative Commons Attribution-ShareAlike 2.0 License.

A v Essex County Council [2003] EWCA Civ 1848. Crown copyright material is reprinted with permission of the Comptroller of HMSO and The Queen of Scots' Printer.

Readings 1 and 4: Slapper, G. e Kelly, D. (2003) El sistema legal inglés, Cavendish Publishing Limited

reading 3: Slapper, G. (2000) „Castles Built on Law“, New Law Journal, vol. 3, no. 150, no. 6941, June 23, 2000

reading 5: Slapper, G. (1998) „Pure genius or plagiarism?“ The Times, August 25, 1998 © News International Syndication

Figures 2, 4 and 6 of Alamy.

Figure 3 Empics/PA.

Figure 5 © Guinness & Co. The word GUINNESS is a registered trademark.

Figura 7 Direto da LexisNexis Butterworth.

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