English Legal system

M.K. PELESE

Mardi 10 septembre 2024

1-Introduction: overview of the law and the

English legal system
A) Try to determine what the law is?

Law (shorter oxford English dictionaries) has 17 diff definitions= the body
of rules were the formally enacted or costumery which a particular state
or community recognizing governing the actions in which it may impose
by imposing penalties.

It might seem obvious, but law is significant in a modern society, it as

consequence and has impact other fields such as politics and history.

Political facts can have an impact on certain aspects of the law. The
relationship between law, morality and society = system of rule by which
a state operates and oversteps with other disciplines but must provide
some guidance about behaviours as a benchmark on which people are
judged.

To be held liable =

Measure behavior according to legislation or rules established by a

society. They can be legal or moral.

Law is not moral, but it is a debate that exists. Does the law have to be
morally justified?

In certain societies, when you steal the proper sanction is to cut the hand
of the thief. It shows the different views on what the law is, and the
sanction occurred.

Jurisprudence = Legal theory = théorie du droit c’est

réfléchir à ce que devrait être le droit.
Jurisprudence = Case Law
On observe dans le cadre du droit européen, le terme “jurisprudence” est
parfois utilisé afin de désigner les décisions juridiques européennes.

Natural law remains a significant of judicial reasoning for instance in

human rights law. Modern such as Dworkin argued in contemporary views
of legal authorities cannot be complete without acknowledging the
importance of moral force. Aquinas (St Thomas D’Aquin) law derive its w
derive its authority from having moral underpinnings.

Legal positivism, by the nineteenth century another school was

developed. The positivists believe that the search for a relationship
between law and morality was a secondary important and that more
significant was an understanding of how law obtains its authority in
society.

Initially philosophers such as Bentham and J. Stuart Mill, and Hobbs saw
the threat of sanction as the incentive for people to do what was good for
them.

(Consequentialism)

More recently writers such as HLA Hart but also Hans KELSEN have seen
law as deriving authority from system of rules, these rules draw legitimacy
from fundamental laws accepted as basic to a society

John Stuart Mill, relying on Hobbs, saw the threat of sanction as the
incentive for people to do what was good for them. More recently writers
such as HLA Hart but also Hans Kallsen have seen law as deriving
authority from a system of rules. These RULES DREW they legitimacy from
fundamental laws accepted as basic in a society

Legal realism emerge in the 20th century what they felt is all that
theorizing was missing the point, they celebrated an American judge
Oliver Wendell Holmes ( entitle the common law ) said « the life of the
law as not be logic, it has been experience the law is that it is and is
determined by factor which are prosaic such who was sitting on the
bench, who represented the parties, the facts of the case being heard or
appealed »

To hear the case = connaitre d’une affaire

The case which been appealed = décision en premiere in state interjetter

appelé

The facts of the case are fundamental to establish a rule for a law

Example : l’affaire O.J SIMSON => explication de la « case Law ».

La doctrine du precedent.

Kal Llewellyn: « The real rules are on the levels of easiness not outness »

Critical legal studies evolved during the 1970’s partly because it has many
strands and is still involving. All law is politics according to him, it is very
disentangled political motivation from legislative and judicial acts. It is
debated by politics. An agenda of removing external bias from the
creation and administration of law.

By the mid 21st century politicly active such as feminist and communist
has provided critics of legal that consider from the « Ancien régime »

Jurisprudence is necessary to the devolvement of the law; it is an

important tool of developing legal principles. Why the law is the way it is.
It will be reflected in the many subjects whether it is tort law.
Jurisprudence educates and illuminates legal and judicial practice.

The sources of Law:

A) What is a Legal system?

Jurisdiction is a term that will come across often it must commonly use
to refer to a political entity where a particular law has application. But the
terms are sometimes used to refer to a body or a court having jurisdiction
over a particular matter or lacking jurisdiction (=competence). It does or
does not have the power to make law or settle disputes in the area of
human endeavor.

In many ways a legal system is synonymous with jurisdiction = the body

of an institution that makes, executes, and resolves disputes on the law of
a jurisdiction together with a law they deal with. You may encounter = the
court has of jurisdiction. They are key concepts, and they are not merely
academics. They are overlapping jurisdiction for every time of law. What is
peculiar is the variety of states and nations which have varying degrees
veridiction for every time of law. What is peculiar is the variety of states
and nations which must varying degrees being associated.

There are around the globe many legal traditions. What we are going to
study is one of the two most important legal traditions: THE COMMON
LAW. The second important tradition in the world is CIVIL LAW (German
and French law).
Beyond common and civil law, there are religious and philosophical laws.
The first difference between common and civil law is that: In the
common law world, case law is from a conceptual pov the most important
(primary) source of law (is like a reflex), and it is also an official source of
law. But there are entire areas where the primary source of law is not
case law but statutes. La jurisprudence reste quand même inférieure à la
loi.
The second difference is common lawyers are obsessed with the facts.
Their rules are linked with the facts of the case where the rule has been
established. If you compare the different regimes.
E.G: French tort law has two main types of legal regime in English Tort law
there are more than 33 types, the distinction are the distinction are based
on the conceptualization
The legal system in Britain has several legal systems. The British Isles is a
geographical rather than legal or a political term. It is made up of two
states. The monarch (king Charles III) is head of state in all the island
except Ireland (the republic gained independence Independence in 1922,
a state of affairs, is entirely separated and Ireland still part of the EU
 Guernsey, Jersey and Isle of Man: crown dependencies and they
are independent of the Uk, and they have their own legal system
(government, legislature (parliament), and court systems.) They are
usually represented internationally by the UK and the latter is the
responsible for their defense and none of them was ever a member
of the EU even when the UK was and although some trading aspects
did apply to these islands before the Brexit. Often the UK parliament
is used to extending the jurisdictions of statutes of these
dependencies, but the parliament has no sovereignty there.
 The UK (the United Kingdom of Great Britain and northern island)
the UK is the state in which British people leave and which acts on
the international stage.
The default position for any legislation produced by a parliament is
that its jurisdiction is the whole of the UK. Northern island Scotland
and Wales have devolved legislature which means that the power to
legislate has been, to a certain extent, delegated to a legislative
body in these nations.
The referendum of the Scottish island (18/09/2014) decided to
remain a majority in the UK.
 When it comes to Great Britain (not include Northern Ireland except
in international sports, Northern Ireland and Scotland have said to
have separate legal systems in the sense of the forum in which legal
disputes are settled) that means that a citizen leaving in Northern
Ireland would be trial in Northern Ireland or make civil claims in the
Scottish court and although the Northern Irish system resembles
that of England and Wales. The Scottish system does not mirror that
of England and Wales. The court system is specific to Scotland and
the law system is an amalgam of civil, common and customary law
where certain academic publications have almost the force of law.
 - England and Wales = English and Wales legal systems; 13th century
(1222) the law that English lawyer use is that of England and Wales and is
administered by the English court.

B)The sources of law in England and Wales

The 3 main sources of law are: statutes, case law, ECHR law and
international law.

English legal traditions face a lot of emphasis? It is important to find

which institution made or recognized a legal rule and to identify exactly
where it was made so that you can decide which rule takes precedence.
In England and Wales by an accident of historic the legal system has a
varied combination of sources, and this is not unique, and most countries
possess a blend of legal cultures (ex: in Norway, civil law has been
superimposed on common law and customary law).

Statues:

Statutes are made by the UK Parliament, consist of the House of

Commons, the House of Lords and the King, he plays a very ceremonial
role. The government usually have majority in the house of common and
is responsible for introducing most of the laws introduce to the
parliament. They are referred to as Act of Parliament or legislation.
Legislation can be divided into primary legislation made by parliament,
and secondary made with authority of parliament and not by it.

Case law:

Is the equivalent of the French word jurisprudence, the decision made by

the court. They consist of independent non-elected judges. In some
jurisdiction judges have a more political role such as in the US. Senior
judges who are those who sit in the superior court, they create case law
by reaching decision before them. Common Law (As a legal tradition and
different from Equity those court who started developing by the King’s
closest chancellor, he was asked by the King to resolve dispute base on
religious principal and offered different kind of remedy refers as equitable
remedy Judiciary Act 1789 alongside the Common Law court who
developed in the end of the 11th) is therefore used to distinguish from
legislation. Beyond the different ways that the terms Common Law is
used, the judiciary sometimes says to have quasi-legislative role.
Judges are said to have law make rule -, they develop law in areas where
legislation is spare. For example: The law of negligent. If necessary, they
fill the gap in legislation.

European Union Law:

The UK left the EU 21/01/2021, it is the result of a referendum which took

place in June 2016. It joined the EU in 1973, EU applied to the UK, many
EU law has been implemented within the UK. They’ve been thousands of
EU law nowadays part of the UK legal system. They decided to keep most
of the EU rules, they are referred as EU retained laws, The European
Act retained laws.

The main EU institution: Council of Minister, Court of Justice, …

International Law:

When it comes to international law, comprise rules governing relation

between different states or people within them. Usually Inter refers to
public inter law rather than private international law.

Public international law comprises a system of rules and

principals that govern the international relation between
souverain state in addition to some institution such as the UN,
OECD.

Private international law: international legal relation between

private individuals and organization, it relates to commercials
endeavor which apply to international trade.

C) The classification of law England and Wales

That a distinction to be made between private and public law. They are
classified, and everyone needs to know the different classification. The
classification has an impact

The main one is between private and public law, public laws deal with the
duties owed to of matters. Includes administrative law, constitutional law
and human rights but also criminal law.

Private law deal to the duties owed to individuals, natural and cooperate
person: include tort, contract, land and equity. Company law is mainly
private because it concerns relation to private people rather than the
state.
The division between private and public isn’t always clear cut, for example
EU was a hybrid. The distinction between civil law and criminal both
impact on people rights and obligation and how both are enforced in
court. To understand the court system, you must master those different.
Mainly separate court that administer justice in different area.

A. The rule of law (equivalent en francais d’Etat de

Droit)
Thomas Pain, 1776 Common Sens “The law is King” in free country the
law itself must be souverain and not every one individual and body.
Nobody is above the law, to many lawyers one of the vital ingredients is
the rule of law. To academics the idea of the rule of…, to the politician it is
an easy theoretical short cut meaning it is necessary.

The rule of law:

They are many authors they’ve tried to give they own definition such AV
DICEY was a famous constitutionalist, HAYEK, E. THOMSON, Joseph RAZ.
Today definition of the rules of law originated from Lord Bingham that he
gave during a speech in 2006, he belonged to the House of Lords in is
judicial capacity, knew…,

The rule pf law is made of few elements:

- The law must be accessible interlegible clear

- Question of legal right and liability should be ordinary by application
of the law and no by discretionary power.
- The laws of the land, should apply equally to all, save to the extent
that objective justify diff
- The law must perform adequate protection of HR
- The means must be provided without excessive cost or delay civil
dispute which the parties can’t resolves themselves.
- Minister and public officers most exercise the power conferred on
them in good faith for the purpose the power were conferred and
without execs
- Adjective (répartir) procedures provided by the state should be fair
= are the rules which would tell the people who are entitled to
rights. The state does determine certain rules that should be
applicated to the citizen.
- The state must comply with its obligation in international law. J.
Finiss 2011: “The name commonly given to the state of affairs in
which a legal system is in good shape” page 270

The use a negative approach by telling what a thing is not, they’re various
factors
 - Arbitrariness
- Lack of protection for citizen
- A lack of independent judiciary
- Legitimacy replaced by the coercion

The absent of the rule of law,

The sovereignty would vest in the individuals and freedom would be

complete. It is a world that was thought by HOBBES in the Leviathan.
Everyone would fight against everyone.

There are some states they are said to have failed in that many of the rule
indicated by the rule of law doesn’t exist anymore. An index points what
are the fragile state it analyses social economic and political, in 2016:
Somalia, South Soudan and Center African Republic.

The nature of the rule of law

Lord Bigham worn to the dangerousness of misinterpretation and water

down of the definition of the rule of law «the jurisprudential equivalent to
motherhood and apple pie”. N L regard law as underpinnings and moral
argument, and it must depend for its legitimacy on minimum standard of
morality. Positivist would claim that a clear and consist body of rule
doesn’t necessarily to conform to certain social and moral standard. The
main virtue of the ROL would be to allow subject to plan their life. The ph.
and economics F. Von Hayek explain this, all system would abide by.

The practice of the rule of Law

The ROL is merely a window dressing, a convincing notion to make a point

and use to distract to a less state of affair. The ROL might be term in
aspiration but not in reality. The legitimacy of the rule of law is used by
head of state such as B. OBAMA and Mugabe. Tony Blair expanded a
great deal of effort that the invasion of Irek was justify by the rule of law.
They rely on the concept of RoL to justify certain decision of theirs.

Government adopts a more pragmatic attitude according to the doctrine

ex “We should not allow ourselves to

Legal academics observe the rule of law

The ROF rest also on some cultural consideration it may seems like a
basic, but arguable a construct of western academics. Is that said that
depends on culture the construction of Law.

For example: contract law is central in western countries, but it isn’t in

other regions of the world such as Africa, Middle East and Far Est were
given each other gifts to praise they friendship but it’s considered as bribe
in our western world.

Studies have been made of the degree to which modern state comply to
the ROF. The world has indented to rank state by conformities of the rule
of law a large mirroring of the Lord Bigham.

A strong correlation between prosperities and the indicators but not a

necessary, one view the rule of law is privileged for state that can offered,
but it can be state that the western state have

Even otherwise

The prevalent of police discrimination and the difficulties owing to

express. China is high raking in criminal justice and law corruption.

Corruption and high crimes rights were and lack of gov accountability.

The separation of powers

In theory

Many of the indicator can be save guarded to some extended by a simple

constitutional devise is the separation of powers. It will prevent
accumulation of too much power in the hand of one body. The SoP
DOCTRINE was fist, but it was given its modern expression by the baron of
Montesquieu he believes the separation of 3 branches will prevent one of
the branches to have to much power. Each branches have a different role
to play

They should be no overlaps either in function between all the powers in its
pure form. If overlaps occurred, then power is concentered its open the
doors to tyranny.

The gov is

The executive power

The Judiciary Power

It is difficult if not impossible to match the absolute separation of power, a

state involves real people and institution. These actors rightly or wrongly
guarded they historical authority. China for example has 5 branches. The
doctrine also state that the branches cannot operate have a system of
check and balancing.

In England and Wales:

The doctrine of judicial reviews allows courts to ensured that the

executive act within the powers which they have been granted do not

The doctrine of ultra vires is the legal foundation on which a decision

can set aside when a rule has been done outside of the jurisdiction of a
branches

Is do not extend to questioned if it is a good rule or not but to

But in the US, they can discuss the merit of the decision of the state. The
US Constitution (1787-1789) was conceived to respect Montesquieu’s
doctrine.

In the UK at national level is its Majesty the King, the legislator is

Parliament, and the judiciary is the Court.

The lord Chancellor was at the same time a Senior member of all three
branches. The Kings remains at the head of all three branches, but he
cannot exercise any role

Straddles

In the US it is the prime minister who has this power.

The first source of law: legislation

Four main point:

- Parliament severity
- Different type of legislation
- The Creation and enforcement of statues
- Statutory interpretation

You should be aware that lawyer often use terms statues = document
containing the law made by Pt. Pt made the domestic statues and is a
bicameral legislature: House of Common and House of Lord. HoC is
composed by the MPs (member of parliament) and are elected at list all
the 5 years. Several individuals stand for election in each constituency
with most representing a political party. The majority is asked by her
Majesty to form the next UK government in the Sovereign we talk about
kings in Parliament. It’s mean that the tree entity is present.

The Crown does play a constitutional rule, more particularly in opening or

dissolving parliament and approving bills before they become law. The
state opening marks the biggening of the Parliament year. It is also the
Crown who dissolve parliament before a general election.

During the state opening the sovereign make a monarch speech which
delivers in on their thrown. This speech is written by the

When he’s done reading the speech, a new parliamentary session start.

The Parliament severity:

The rule of law on fundamentally sovereignty, the notion of parliamentary

sovereignty is central to an under of law making in ELS. It is a principal
that holds that P is the supreme legislative person and no person or body
can challenge the law that P passes. Every citizen is supposed to be
represented by a MPs, the people in the UK are sovereign. That lies in the
fact that pr legislation has a special status (Act of P) within the ELS, they
are the manifest expression of P sovereignty, every other forms of law
mustn’t violate and overturn primary legis. This is a mark different
between other law system, in the US the American Supreme Court has the
power to strike down any primary legislation that violate the US
constitution. No such power as of yet has been recognize by UK legislation
to under the ELS. Parliament supremacy was developpe in a series of
cases during the 17th century, and the Crown wasn’t content with this
change of power.

Primary legislation:

Categorisation of bills

They geographical scoop of application, effect that they have either on the
whole pop are a spec group.

It flows directly from the idea of P sovereignty, the principal that P

legislate on any matter they wish. Ant it is achieved through primary
legislation, pieces of intended are initially referring to as Bills and once
the legislative process is achieved, they are no longer Bills but became
Act of P, this AoP can be categorise:
  Public Bills: General application in the UK or for one or more of the
constituent countries. They are the most common type of B in the
ELS, btw the 201-2012 more than 311 that became AoP, they were
usually introduce in the HoC by the Government. If passes through
the legislative system public bills became general act.
 Private Bills: They applied to define geo regions or location, they are
more refers to as local B, are spec grouping of people and they will
be called private B. Potentially those P Bills have an oppressive
nature, this are subject to additional requirement to safeguarded
ind rights. The parliamentary process is more less flexible to assure
certainty, those productid the Bill has been brought forewords.
Private Bill is supported typically by public authorities such as local
council to extend
 Hybrid Bills: They have mixes function that they in general
application but effect, they do so in way that it affected by the Bill.
Example: a national infrastructure which would have a local impact
=> the high-speed project London Birmingham. They aren’t
frequently use.

Natural person/ Legal person.

The origins of the Bill: who proposes the Bill

 Government Bills: These government Bills are proposed and

supported by the Gov; they aren’t as numerous as private member
bills but as a much grater chance of success. They go through the
full legislative procedure. The vast majority of gov legis that Is
proposed will become law it may be amended but fund the ELS in
such a way that the gov can passe a bill that wishes to pass. This
rases the question of the ability about what the Gov is actually
doing and giving full scrutiny that law. This a consequence of the
attendance of the UK … The Gov has introduced 130 bills 99
became AoP
 Private members Bills: They are to be distinguish from the private
Bills (geo impact) now we are talking about who initiate the Bill.
Introduce by members of MPs or MhLs and they are likely to be
public bills. Despite the highest number of Bills, they have a very
little chance to succeed due to the fact that P control the time to
speak so very little time to explain the Bills. 664=> 84 about 5 %.

Private members B can be introduced three diff ways:

- The Fridays: 20 names are chosen from that list and they ae given
priorities are presented their B. They have much greater chances to
succeed.
 - The 10-minutes-Rules: a member may on specifies days the
member may attempt to present their B, will maybe open a debate.
- By presentation: any MPs can present their Bills, this are rarely
progressed.

The legislative process:

Bills are formed in a historical/political/eco and social context, it is

important to understand the institution. It is often a combination of this
factors, eventually (in fine) leads to a piece of legislation that is brought
forewords.

 The manifesto pledges (une profession de foi) each political parti

will actually produce a manifesto will detail the principal and policies
that the party will seek to achieved. It can contain precise and
specific promises and can contain a detailed legislative project.
 Royal Commission report is set up by the Government on a had doc
(specifically of the purpose). Is to review an area of law where
appropriate to make recommendation for improvement or reform.
They are said to be nonpolitical and independent from the
Government which is a guarantee that the Gov can rely on the
recommendation of the Gov.
 Public inquirers (enquête: commissaire enquêteur qui vont etendre
les riverains): That is a range of diff type of inquirers, but statutory
inquirers are set up in respond to scandal events that forms an
influence on law making. It has since an increase Inquirers Act of
2005. Fact finding exercises.
 Law Commission report: An independent body established by the L
Cmss Act 1955. The purpose promoting the reform of the law unlike
Royal Commission is a permanent body dedicated to the law
reformed which in limited circumstances can investigate. Regardless
the sources of initiative of the review of the area of law all propose
work needs to be approved by the Lord Chancellor and they are
called Commissioner, they are independent of Gov control. In reality
there is a strong working relationship btw the Gov and the
Commission. Some law Commission recommendation which was
consider important hasn’t been implemented (2010-2018) there
were no legally qualified minister of justice. They have rolling
program of project, the 30th lunch in 2017, they are deemed to work
on arbitration (a different ways of settling dispute outside of a
court, they agree in advance, even chose the law applicable). A
huge amount of money is at stake, they also working on bank
 readvance to them to their clients, online communication,
surrogate, lease.
 Pressure groups can be important but sometimes controversial, they
seek to campaign on certain issue.
 Public pressure: Generalise public pressure that tend to come about
that events that are exposed by the media. (the Dangerous dogs Act
1985)

Prelegislative process: the stage that a government bill will go through

before being presented to parliament. Not all gov will go through alle the
procedure, it might vary.

Green and White papers, the names come from the colors they were
originally print. They set up proposal on potential legislation.

The white papers give further details of the direction of the gov would like
to take on a particular policy. They aren’t definitive Act, but they are
asked for “advice”

The Speech from the throne sets out the general policies that the gov
would want to debate on.

Drafting Bills may be published in drafted of specialist lawyers within the

Office of Parliamentary Council. It represents the diff spec policies ideas of
the various gov department and formulate into the Bills that will be
introduce to the Parliament.

The legislative process

Most Bills may be begun they life’s in either the common or the lord but
can received. Both chambers must approve the Bills so it can be sent to
the (the royal assent) monarch and approved by him to become an Act of
Parliament. They are Bills that must begin they life in the common (money
bills) matter covering the judicial system or implement law, will start they
life in the Lord. The statement of compatibility since the HRA 1998, all gov
Bills are subjected to a so-called statement of compatibility section 19
of the Human Right Act of 1998. It is very rare that a Bills do not receive
a statement of compatibility.

If a Bills start is life in the HoC, it will then there be submit to the First
Reading the first presentation of the Bill to the Parliament. And a date will
be set for a Second Reading. A public reading will be set, the outcome of
which be communicated to the House.

The S R will be focuses on the principal, when it comes to gov Bills the
minister responsible for the Bills presenting and the Bill will be debated
and eventually a vote on the flow of a chamber is held. Then immediately
after a program order will be past following a program motion and
basically to set a timetable for the remainder of the Bill in parliamentary
debate. The bills will be scrutunise and every detail of that law will
analyse by the diff comity to add amendment during the report stage.
Immediately following the Third Reading, amendment are not permitted
but there is a final debate on the merits of the Bills a vote that will
determine if the legislative debate continue or not. It moves to the HoL
and will undergo the same stages and if there is a positive vote it will be
considered allow to be sent to the monarch for the royal assent, he will
officially send that it can become law of the lands.

Before the end of the 18th centuries deemed introduced

The doctrine the juridical president