Common Law Flashcards
The British Isles
les îles Britanniques = a geographical term
British Isles
archipelago of over 6,000 islands
are not part of the archipelago
The Channel Islands (îles Anglo-normandes)
The channel Islands
much closer to France geographically
Channel Islands (îles Anglo-normandes)
- the Isle of Man
- the Bailiwick of Jersey (le bailliage de…)
- the Bailiwick of Guernsey
*
- the Bailiwick of Jersey (le bailliage de…)
le bailliage de…
Channel Islands = British Crown Dependencies that are not part of the UK
but rather considered as a** remnants **of the Duchy of Normandy. They are self-governing entities with their own courts and legal system at the head of which is the Queen referred to as “our Duke” (in reference to the Duke of Normandy)
Great Britain
= a geographical term = the largest of the British Isles.
Great Britain
Includes three territories: **England **(capital : London), Wales (capital : Cardiff) and Scotland (capital : Edinburgh)
GB
approximately, 60 million in population.
The United Kingdom of Great Britain and Northern Ireland
a political term.
The UK
4 nations
England, Wales, Scotland and Northern Ireland
England, Wales, Scotland and Northern Ireland
UK
Great Britain (=England, Wales and Scotland)
England, Wales and Scotland
GB + Northern Ireland
UK
To go to the polls
aller voter
Polling station
bureau de vote
Opinion poll
sondage d’opinion
To call to the polls
appeler aux urnes
Voting right
droit de vote
Leading the polls
être en tête des sondages
To be defeated at the polls
être battu aux élections
Ballot paper
bulletin de vote
Independence
que des « e »
Common law
England and Wales only
England and Wales
England and Wales have a unified legal system but not the rest:
Devolution
“decentralisation”, délégation de pouvoir
more thoroughly
plus en détail
historical landmarks
répères historiques
UK
sixty-seven million people:
England: 84%; Scotland: 8.4%; Wales: 4.8%; NI: 2.9%
Population/ UK
England: 84%
Scotland: 8.4%
Wales: 4.8%
NI: 2.9%
An aging society in UK
low fertility rate
low fertility rate in UK
More and more old people among whites.
Non-white communities are comparatively younger.
An increasingly multicultural society
uk
Britain seems to be a ‘closed’ country,
in fact it has always been a country of immigration
GB in fact it has always been a country of immigration?:
Celts, Romans, Angles, Saxons, Jutes, Vikings, Normans, French Huguenots, Jews.
House of Windsor
It’s the current royal family of Great Britain that is German
House of Windsor was originally..
House of Saxe-Coburg and Gotha
GB and exchanges between the four nation ?
There were of course exchanges between the four nations, many people coming from Ireland in the 19th c.
Immigration in Britain : 1900’ / 2000’
Eastern Europeans (Poles = les Polonais), French…
More recently extra European emigration has developed
Caribbean people, Africans, Asians came after WWII, a « new immigration » coming from** the Empire and the Commonwealth.**
For the first time, a large part of the immigrants were not white and not Christian.
Extra european immigration in GB
Many of these people are second or third generation born in the UK and see themselves ** alternatively as part British, part foreign or entirely British or entirely foreign.**
Each type of immigrant brought
new conceptions of the law and forced the law to adapt.
What kind of immigrants have had the greatest impact on the law?
Romans and Normans had the deepest influence.
The more recent influx of a large non-Christian, especially Muslim, population has led to interrogation about British identity and ‘Britishness’.
British society can be described as multi-faith but also as secularised.
multi-faith
multiconfessionel
Brit·ish·ness
the quality of being British or of having characteristics regarded as typically British.
Yet as a concession to Islam
sharia is now being used by solicitors (notaires) to interpret succession rules (wills) of Muslims.
Brexit : a spiny issue
question épineuse
Law
In English, the same word can refer to various notions.
Ø law
the legal system = le droit
To study law’
“faire des études de droit; “faire son droit” (vielli)
Ø law
la justice
an action at law
une action en justice
A court of law
un tribunal (=une cour de justice)
The law
la loi = the legislation
the set of rules which govern a specific society
la loi
to break the law
transgresser la loi
A law
une loi votée par le Parlement.
Synonym “a law”
act,
an act of Parliament = une loi parlementaire.
Synonym “a law”
=statute
a statute = une loi parlementaire.
Statute law
la législation parlementaire.
‘English law’
Le droit anglais est le système juridique de common law de l’Angleterre et du Pays de Galles,
‘English law’
all the statutes and decisions taken by judges. = “judge-made decisions” = this is what is called “common law”.
Common law was originally essentially based on
the interpretation of customs (=coutumes)
and pre-existing laws by judges.
Common Law = ≠ Roman law
= no codes of law as in France for instance.
a specific type of law :
the « Common law» = = ‘The law common to all’
Common Law, another term ?
‘case law’; slightly different but almost a synonym.
Rappels linguistiques : les majuscules en anglais :
les adjectifs ET les noms de nationalité !!!!
an **English **umbrella,
a Spaniard
a Spanish restaurant,
un Écossais : a Scot et non a Scottish as in a **Scottish restaurant **
Rappel orthographe : différences avec le francais.
independence,
responsibility,
correspondence,
to address someone,
to receive etc.
Rappel, les faux amis : Actually et Eventually
Actually : En fait,
Eventually : finalement.
Important : revoir l’emploi des articles : Ø, a, the
Important : revoir la distinction preterite/present perfect
law made by Parliament
Statute law
law made by ordinary courts
case law (or judicial precedent)
case law
common law
to denote contrast between two forms of civil law :
common law and equity (judge-made law : was created to make good the defects of the common law)
civil law countries
countries which have chosen the Roman model of codified law
countries which have adopted the common law system
*UK,
*US except from Louisiana,
*Canada, except for Quebec,
*Australia, New Zealand, Malaysia, countries in Africa, the Carribean etc.
Common law ≠ local law , why ?
Means the law of the whole land (commune ley)
common law ≠ statute law why ?
The law of the ‘common man’, not the law made by Parliament (=statute law).
Common law ≠ equity, why ?
The law developed by judges for ‘normal’ people, **not the law made by the Chancellor **
Common law ≠ case law, why ?
includes common law and equity
Where common law is not apply ?
Does not apply to Scotland, various reasons, various differences.
Where does the common law not apply in the GB?
Does not apply to Scotland, various reasons, various differences.
Peut-on parler de UK law ?
Oui pour les lois qui s’appliquent à l’ensemble du Royaume-Uni votées par le Westminster Parliament et les décisions de la UKSC (The UK Continental Shelf),
Pour le reste les décisions de la Court of Appeal of England and Wales ne s’appliquent qu’en England et Wales , même chose pour les décisions écossaises exemples: Abortion(avortement) INI, etc. ou UK Law : EEC(European Economic Community) Act 1972 ou décisions de la UKSC.
décisions de la Court of Appeal of England and Wales ne s’appliquent
qu’en England and Wales,
meme chose pour les décisions écossaises exemples: Abortion(avortement) INI, etc. ou UK Law : EEC(European Economic Community) Act 1972 ou décisions de la UKSC.
The purposes of law
(European Court Human rights)
ECHR
Article 8 – Right to respect for private and family life
Equity (=legal category)
with Equity the claimant may obtain a legal remedy other than pecuniary
legal remedy other than pecuniary like what ?
like an injunction to fulfill one’s contractual obligations
Equity and Common law,
les deux relèvent de la jurisprudence et sont fondées sur la règle du précédent mais les règles d’Equity permettent de pallier les dysfonctionnements de la common law, par exemple le fait que selon la procédure de la common law, à l’origine, l’on ne pût obtenir réparation que sous la forme de compensation pécunaire.
dommages-intérêts
financial compensation/damages
breaches of contract
pour violations contractuelles
Si le seul octroi de dommages intérêts (compensation monétaire) ne suffit pas, le plaignant peut réclamer que le cocontractant remplisse ses obligations et le juge peut prononcer/accorder une injonction (=obligation).
Where do common law and equity proceedings take place?
Nowadays both procedures take place in the same courts (since the 1873 Judicature Act)
public law
relationship between the state and its citizens
private law =
rights and duties of individuals towards (vers) each other
tort
délit civil
criminal law
offences against the state (the case has to be proven beyond reasonable doubt)
A body of rules and statutes that defines conduct prohibited (comportements interdits, la conduite) by the government because it threatens (menacent) and harms (nuisent) public safety and welfare (safety = sécurité et bien etre=welfare - public) and **that establishes punishment **(peines) to be imposed for the commission of such acts.
civil law
- disputes between individuals (the case must be established on the balance of probabilities)
Civil law -> the case must be established on the balance of probabilities
Saying something is proven on a balance of probabilities means that it is more likely (probable) than not to have occurred (qu’il se soit produit). It means that it is probable. The probability that some event happens is more than 50%. So mathematically proof on a balance of probabilities is 50.1% likelihood of something having occurred.
to be proven beyond reasonable doubt
This idiom is most commonly used in the legal system to show proof If somebody is to be judged guilty, he must appear guilty beyond (au delà) a reasonable doubt or certainly guilty given (=compte tenu) the circumstances of the trial.
substantive law vs
procedural law
The constitutional landscape
a constitutional monarchy and a parliamentary democracy.
Why Britain is a parliamentary monarchy ?
the head of state is the monarch
Monarchy: ‘government of one’ **
type of pol. system where the political authority resides in one person.
Common def.: ** pol. system where the Head of State is a hereditary king or queen.
Monarchy but however..
in Western Europe, monarchs like Elizabeth II have little power left: ‘residual powers’ or privileges,which are mainly symbolic
to declare war
make treaties
take possession of or give up territories,
issue orders to armed forces,
control and manage the civil service.
Queen
opens and prorogues parliament,
appoints the Prime Minister,
opens and closes parliamentary sessions,
signs laws (royal assent),
she is head of the Anglican Church,
appoints archbishops (archeveques) and bishops (eveques) (on proposition by PM),
appoints ambassadors,
awards honours and titles (list given by PM), .
The Queen has a power of consultation and advice for government
Queen
“the United Kingdom has no constitution.” true or false ?
This is wrong. **The UK has a constitution but it is not written in the form of a single document **
The distribution of powers is defined. They are codified through written sources which, put together, form a flexible constitutional system. Without such rules, there would be no state anyway.
= A constitutional monarchy
a monarchy can be a democracy.
true or false
true.
GB is a parliamentary/representative democracy
In a representative democracy, the people elect representatives
to a Parliament or national assembly.
In Britain, it is the House of Commons to
which Members of Parliament are elected.
Universal suffrageguarantees the legitimacy of this parliament to vote the laws.
Citizens cannot influence legislation directly, but in return for being elected, the representatives are accountable to the people they represent, they must defend their interests, and stick to what they promised they would do. They vote the laws (the legislative power). If they don’t they may not be re-elected later => a contract
The party which holds the majority in Parliament forms
the executive (Cabinet)
= A representative / parliamentary democracy
In a liberal democracy political authority
is based on popular consent = vote.
In a liberal democracy … In GB
Civil liberties (speech in particular…) must be protected at all costs (=à tout prix) by the rule of law (l’Etat de droit).
In Britain, individual freedoms are guaranteed by the law and by the courts (=tribunaux)
Capitalist democracy
Limited intervention of the state in all matters (=matières).
–> economy: the market is the dominant force, state interference must be limited
=> in fact, the mixed economy dominates. Rests on large middle classes
How did Britain’s constitution develop ?
In the UK, the constitution has grown slowly by the accumulation of
- conventions,
- court decisions
- and law.
Constitution def
- defines the structures of the state.
- It shares power among institutions, at various levels (national, regional, local), it defines the links between the various levels, the way to choose their leaders (elections), the relations between the State and the citizens, and with the rest of the world.
- A constitution (‘fundamental law’) has a value superior to other laws.
- It appears generally in special circumstances (a political crisis, a war) and needs special procedures to be changed (a referendum, 2/3 majority of Parliament).
sources of the constitution of GB, how much ?
4 essentially:
1) Parliamentary laws
2) The common law
3) Conventions
4) International treaties and laws of the European Union
Parliamentary laws, for example, which are constitutional laws
- Magna Carta, 1215,
- Habeas Corpus Acts 1640 & 1679,
- Bill of Rights 1689,
- Reform Act 1832,
- European Communities Act 1972,
- Human Rights Act 1998 etc.
common law as a constitutional source
Legal decisions which have become legal rules established by the higher courts (= tribunaux supérieurs) like the Court of Appeal, the House of Lords until 2009 and now the Supreme Court supposed to embody the values of the national community.
Conventions as a constitutional source
Rules that are accepted by everyone but were never voted and cannot be enforced by a court of law.
A convention is a practice which, through custom, is considered to be the appropriate behaviour or procedure to follow in given circumstances.
Nothing written, but imposed over time, sanctification of usage, of something that works => pragmatism.
***These conv. can be considered as antidemocratic bc they were never vo
For example, the rules of the monarchy are essentially conventional: Royal Assent.
International treaties as a constitutional source
these acts are considered as if they had been passed by the British Parliament.
‘Real’ power is exercised by
the legislative, the executive , and the judiciary powers, through institutions :
- Parliament, government /Cabinet and courts of law
Powers is exercised in the name of the monarch but the monarch doesn’t intervene directly.
Government involves (implique)
three main tasks, called powers: legislative, executive, judiciary
The legislative (power)
the process of making laws.
In the UK,** Parliament,** made of the monarch, the House of Commons and the House of Lords
The Executive
the implementation (application) of the law
All agents of government, especially the Cabinet (20 main ministers around the Prime Minister) , local government, civil servants…;
The Judiciary
the enforcement of law (=éxécution)
making sure that the law is respected and redressing injustices.
Courts and police
Three essential principles must be respected in a democratic constitution
1- « the rule of law » (l’État de droit, la règle de droit),
2- Parliamentary sovereignty
3- separation of powers.
The rule of law means
= la primauté du droit
Laws apply to all citizens and to the state (or the agents of the state).
‘No one is above the law.’
Parliamentary sovereignty means
That Parliament is the supreme lawmaker in the country.
Only Parliament can unmake a law that it voted.
(This is a convention by the way.) (=sois dit en passant).
Separation of powers requires
that the three powers do not overlap(ne se sevauchent pas) as much as possible. They must be balanced so that not one of them dominates the other two excessively.
Before Parliament
Between** 6-11th centuries (until 1066),** the Anglo-Saxon kings organised
The Witenagemot (=“assembly of wise men”) (=wise=sage) with the most important noblemen and churchmen.
Before Parliament
After the Norman invasion (1066) = 11th centuries the Witenagemot was replaced by
The **king council*
Before Parliament
members of king’s council
- nobles (landowners)
- his closest advisers
- ministers, in charge of daily administration of the kingdom and of voting taxes
Before Parliament
… are sometimes seen as the first statute (law governing trial of ecclesiastics)
The Constitutions of Clarendon (1164)
Before parliament
The Constitutions of Clarendon (1164) are sometimes seen as the first statute. But traditionally, it is considered that written law has existed since
1225, when the Great Charter (Magna Carta 1215) was reformulated under Henry III.
The Great Charter was imposed on king John Lackland (1215) by his barons (brother of Richard the Lionheart).
At the time, there was no real parliament. The King had two councils to help him govern.
Emergence of Parliament
Who was the first to summon (=convoquer) a ‘Parliament’
Simon de Montfort, who rebelled against Henry III, in 1265
Summoned about 400 people
Emergence of Parliament
Simon de Montfort summoned about 400 people, who ?
-
all the nobles,
bishops and archbishops, abbots, members of the lower clergy, 2 knights (=chevaliers) for each shire (= comté). - two burgesses from each city, known as the commoners (roturiers) (=> formed the basis of the Commons later).
These citizens were brought in because they represented the rich emerging “bourgeoisie” (merchants, traders, artisans etc.) = the emerging gentry = new = not only the nobles and church were consulted.
Emergence of Parliament
Why Montfort summoned burgesses ?
Wanted to consolidate his legitimacy by including people who did not support the king as much as the clergy and the nobles.=> the king’s council became more representative of the country, as if the king needed the approval of the “people”.
It did not replace the King’s Council, it was just an additional institution.
Emergence of Parliament
When King Edward I, in need of money for war in Scotland, decided to summon a parliament ?
In 1295
Emergence of Parliament
What happened in 1295 …
King Edward I, in need of money for war in Scotland (cf. Braveheart), decided to summon a parliament. A way to consolidate his authority and avoid the rebellion his father had faced. (father=Henry III).
Emergence of Parliament
Why Edward’s Parliament was called the “Model Parliament”
because future Parliament imitated its composition, but it sat only once for a few days.
Parliament then was summoned more regularly though not every year
Emergence of Parliament
When for the first time, the Commons met separately ?
In 1341
Emergence of Parliament
Commune
= community of the kingdom.
Emergence of Parliament
This ‘Lower Chamber’became known as the House of Commons and the ‘Upper Chamber’ (nobility and clergy) became known as the House of Lords from
1544 onward
Emergence of parliament
1544, HOC & HOL collectively known
as the Houses of Parliament.
Emergence of Parliament
From 1544, The nobles (King’s Council) and the commoners (Parliament) discussed the king’s proposals
separately.
Quickly, their interests started to clash.
Under Edward III (100 Years’ War), consent of Parliament became essential as the king was in need of money for war
Emergence of Parliament
Under Edward III , consent of Parliament became essential as
the king was in need of money for war
(100 Years’ War)
Emergence of Parliament
At the beginning, who presented the legislation and then who had the initiative of the laws ?
At the beginning,** it was the king who presented legislation**, but slowly, Parliament took the initiative of laws to be voted.
Emergence of Parliament
In the 15th century, the House of Commons …
took (a pris, pris) precedence over the Lords (=préseance=droit issu d’un privilège de prendre place au dessus de quelqu’un) : its consent was necessary before a bill (=projet de loi) was passed to the Lords
Emergence of Parliament
In the 16th and 17th century,
the modern procedure was adopted:
- presentation,
- 3 readings of bill,
- adoption by House of Commons and House of Lords, - King’s signature (royal assent).
Emergence of Parliament
Definition legislation : 16th century
Legislation became the deliberate adoption of specific proposals embodied in specific texts proposed by the Crown or its officers.
From king’s power to Parliament’s power
Parliament was the main counter power to monarchy until the …
late 17th
From king’s power to Parliament’s power
The tension between the crown and Parliament increased in the 16th and 17th centuries because
the kings (and Queen Elizabeth I) still held important powers but they had to obtain the support of Parliament for most things.
From king’s power to Parliament’s power
In the 16th, parliament was summonded every
2 or 3 years
From king’s power to Parliament’s power
Why the tension reached a peak under king Charles I ?
refused the control of parliament and did not summon the Commons for 11 years (1629-1640).
This ended in a revolution, the king was beheaded (1649) .
From king’s power to Parliament’s power
The king Henri I was beheaded (1649) and Oliver Cromwell
imposed a Republic (the Commonwealth)
From king’s power to Parliament’s power
When monarchy was restored in 17th century ?
1660, but it was weakened.
In the Glorious Revolution (no blood), the Bill of Rights …
granted (a octroyé) Parliament independence from royal absolutism (entrenched the superiority of Parliament)
date of the Bill of Rights at the end of the glorious revolution
1689
After the bill of rights 1689
- The king was no longer allowed to hold exceptional powers (suspension of a law, exceptional justice, taxation…).
- MPs were allowed to speak freely inside Parliament.
-
Commons allowed to meet regularly.
= The Commons were now the dominant institution in the country.
The royal prerogative after the bill of rights of 1689
- still exists but in a very limited number of cases
- Officially, for instance, it i**s the Queen who :
- summons Parliament every year,
- announces the govt’s programme for the year (Queen’s Speech),
- declares war,
- signs treaties etc,
- but it is at the initiative of the Prime Minister.**
From private interests to public good:
In the second half of the 19th century
private legislation became a minor preoccupation while public general legislation increased. (a augmenté)
–> The number of acts grew to follow the pace (rythme) of the industrial expansion. Urban dvt became an issue. –> more and more acts were passed as the state took more and more responsibilities to support public policies (= politiques publiques) at a national level to limit the nasty consequences of the Industrial revolution.
What’s the Public Health Of 1838
public general legislation
which created a Central Board of Health (national central authority) obliged municipalities to :
- organise drainage (cf. sewers = égouts),
- **water supplies **(=approvisionnement en eau) and street cleaning to avoid epidemics (cholera eg).
What has created the Public Health of 1838
a Central Board of Health
In the 20th century, legislation reflected
** the devt of social policies and exploded literally:**
- health,
- education,
- direction of the economy,
- administrative reform.
The creation of the Welfare State in 1945 needed a large number of laws.
création de l’état providence
** Welfare State** in 1945 needed a large number of laws.
conditions representative democracy :
9
- Universal suffrage
- Free and fair (=équitables) elections
- Several parties
- Free media to make programmes of all parties public.
- An opposition is allowed (=autorisée) in Parliament to defend other points of view.
- Separation of powers
- the MPs are accountable to their electors and supposed to act in a way that satisfies them.
- Regular elections
Who may vote in the general election?
All British subjects and citizens of the Irish Republic residents in the UK aged 18.
Who may not vote in the general election?
3
- the Queen,
- those who lost their civil rights, like convicted offenders detained in prison, people guilty of corrupt or illegal practices, insane people detained under mental health legislation.
- Members of the House of Lords are also forbidden to vote.
Voting is
voluntary, not compulsory.
Voting day
Thursday
jeudi
