Volledige samenvatting van het vak Introduction to common law and legal english;
Gedoceerd door prof C. Mackenzie in academiejaar ;
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Introduction to Common Law & English Legal
Terminology
COMMON LAW? ENGLISH LEGAL TERMINOLOGY?
I. Common Law
The notion ‘common law’ has several meanings:
1. Law developed by judges in the 11th and 12th century to form a ‘common’ law for the whole
country (as opposed to1 the situation prior to the Norman conquest).
2. The rules developed by judges: ‘judge-made law’.
3. Legal systems based on the English legal system: ‘common law systems’ (as opposed to civil
law systems).
4. The law used in common law courts prior to the reorganisation of the court structure in
1873-75 (as opposed to Equity in the Chancery courts).
EU countries with a common law system are:
1. England, Wales, Northern Ireland NOT Scotland: they use Roman-Dutch Law.
2. Republic of Ireland.
3. Malta (mixed system with common law).
4. Cyprus.
All of these countries were occupied by the English and that’s how common law spread.
Some of these countries have moved on from this system, others kept some elements of
common law.
II. The legal systems of the United Kingdom
The United Kingdom of Great Britain and Northern Ireland consists of four
nations (England, Wales, Scotland and Northern Ireland 2), with different legal
systems for (there are 3 legal systems):
o England & Wales
o Northern Ireland
o Scotland
2.1 Great Britain
Great Britain consists of (bestaat uit):
o England
o Wales
o Scotland
In this course, only the system of England and Wales will be discussed.
1
In tegenstelling tot
2
Ierland is een apart land
,III. English Legal Terminology
This course is not a language course, grammatical errors are not relevant. At the exam you just have
to prove that you understand what you’re talking about.
IV. SOURCES
A. No formal list of sources
Unlike the continental legal systems, there is no formal list of sources. The main source is case-law
and custom, as developed in the common law.
Judges in the English legal system will never say “I don’t know, there’s no rule for this”. In that case
they will just use their reason or religion and make the rules up themselves (some rules are even
derived directly from the Bible).
The most important source of new rules today is legislation (parliamentary law) and there is also a
very recent addition: European law as a source of legal rules.
B. The original source is reason
The judges have to ask themselves: “what would be a good solution to this problem?” They have
to use their reason.
- Lord Mansfield3 said the following (in 1773): “The source of legal rules is equity, reason and
good sense” Judges have to do some solution seeking by thinking, coming up with a
solution that makes sense.
- For common law it is said to be logical reason, for equity moral reason.
With morality, religion and logic, it is claimed that this will grant justice. Legal rules should
therefore be understood from the point of view of justice.
- Ideal legal rules grounded in justice are not created or invented but discovered.
There’s an idea of perfect justice, namely pre-existence God has created it and the purpose of
each judge is to come closer to this ideal by interrupting existing rules or creating new rules.
C. Non in legendo sed in intelligendo legis consistent
“The reason of the law is the life of the law, for tho’ a man can tell the law, yet if he know not the
reason thereof, he shall soon forget his superficial knowledge, but when he findeth the right reason of
the law and so bringeth it to his natural reason that he comprehendeth it as his own, this will not only
serve him for the understanding of that particular case but of many others.” - Lord Chief Coke, early
17th century
The ideal of justice will be reached/achieved by deciding what is a just solution (een
rechtvaardige oplossing), BUT that’s in theory. In reality cases aren’t always built on this
system.
D. Where do we find law?
Orthodox4 legal sources:
o Parliament (statutes & statutory instruments)
o Courts and tribunals (precedents) (common law)
3
Lord Mansfield was a British barrister, politician and judge known for his reform of English law.
4
>< Onorthodox
, o European Community/Union
V. LEGISLATION (source)
A. Parliament as a rule-maker
- Parliament is the most important law-maker. They make the most rules and are also highest
in hierarchy5.
- Parliament is sovereign and supreme and as such has the ultimate decision-making power.
<-> In Belgium, the Parliament can’t change the Constitution without permission of the previous
Parliament. If the British Parliament wants to do the same, they can do that by a simple majority,
because Parliament doesn’t have competitors in the legal system (they are sovereign).
- There is only one parliament: the parliament in Westminster.
- The position of Parliament was settled in the Bill of Rights (1688-1689).
Legislation is written in very precise language by specialised legal draftsmen 6. Legislation is not
subject to judicial review7 by judges.
This causes tension with the judges, because Parliament is the most powerful, but legislation
is subject to interpretation Law is language and language is not precise.
EXAMPLE: A STATUTE: CHILDREN ACT 1989:
- Texts from Parliament are written in a very specific
language, because of the relation between Parliament
and the judges. Parliaments want to stop/limit the
opportunity for judges to give another interpretation of
the texts and that’s why these texts are so specific.
- Another technique is defining by law what words and
phrases mean that also takes away the possibility for
judges to interpret the texts.
B. Statutory interpretation
What is statutory interpretation? Giving meaning/content to an Act of Parliament.
The highly-skilled work of the parliamentary legal draftsmen is aimed to make the law clear and to
avoid the need for statutory interpretation, but sometimes interpretation is needed for different
reasons.
Judges can be hostile to legislation, preferring not to assist the legislator in achieving the aims of the
statute (wet) They’re not always willing to give a meaning that is in line with the text.
The Interpretation Act (1978) defines many words and phrases. These definitions should be used in
interpreting statutes. The rest are left to the court to deal with that is why the courts have
developed their own rules of statutory interpretation.
C. Statutory interpretation: reasons why it is needed
Case: London and North Eastern Railway Company v Berriman (1946)
Mr Berriman was a railway worker who was hit and killed by a train while he was doing maintenance
work (oiling). Regulations stated that a lookout should be provided for men working on the other
5
Parliament is sovereign: they can do whatever they want, they can change any rule.
6
Draftsmen: a person who drafts legal documents (een technisch tekenaar).
7
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary.
, railway line ‘for the purposes of relaying or repairing it’. Mr Berriman was maintaining the line. His
widow tried to claim compensation for his death because the railway company had not provided a
lookout man. The court ruled that the regulation did not cover maintenance work and so Mrs
Berriman's claim failed.
The court looked at the specific words in the regulation and was not prepared to look at any broad
principle that the purpose of making this regulation was to protect those working on railway lines.
In Belgium we look at the goal of the law: in this case that would be protecting the railway workers. It
doesn’t matter whether they were maintaining, repairing or relaying the tracks.
This court however decided that ‘relaying and repairing’ means that there are problems with the
track and ‘maintaining’ is to make sure no further problems will rise. The Court interpreted the
terminology literally without looking at the original intentions of the text.
There are a lot of reasons why statutory interpretation is needed;
o unclear wording
o broad wording
o new developments
o drafting mistakes
o change in meaning of words
o mistake in the legislation
D. Statutory interpretation: how?
If we are talking about statutory interpretation, there are 4 different rules:
o the literal rule
o the golden rule
o the mischief rule
o the purposive approach.
1. The literal rule
= If we use this rule, we are going to use the ordinary and natural meaning of the words. You ae
going to look at the text , the actual words
Examples (cases):
o Whiteley v8 Chappell(1868)
An Act made it an offence to impersonate ‘any person entitled to vote at an election.’ The
defendant attempted to vote in the name of a deceased person who was still on the electoral
register. As a dead person is not ‘a person entitled to vote’, it was decided that no offence
was committed.
8
When you see the letter ‘V’, never say ‘versus’. Only in American English they use ‘versus. ‘V’ means against or
and.
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