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Samenvatting Introduction to Common Law and Legal English
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INTRODUCTION TO COMMON LAW ANDLEGAL ENGLISH 23-24
Gedoceerd door professor Cailin Mackenzie
1. INTRODUCTION AND TERMINOLOGY
1.1. WHAT IS COMMON LAW?
Common law has 4 different meanings :
Law as developed by judges in the 11the and 12th century to form a common law system for the
whole country as opposed to the situation prior to the Norman Conquest (1066)
Rules developed by judges = judge-made law (most of the rules are judge-made) = substantive and
procedural
Legal systems based on the English legal system = common law systems (as opposed to civil law
systems like we have here.
The law that was used in common law courts before the reorganization of the court structure in 1873-
1875 law used in courts is one of the most complicated things, whereof Equity is very important.
COUNTRIES WITH COMMO N LAW SYSTEMS + UK
England and Wales + Northern Ireland
Republic of Ireland
Malta = mixed system including common law
Cyprus
Legal systems in the UK !
The UK consists of 4 nations (GB + NI) with distinct legal systems for certain parts :
England + Wales
Northern Ireland
Scotland
Great Britain = England, Wales and Scotland here we only discuss England and Wales since Scotland has a
completely different legal system (not common law).
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,LEGAL TERMINOLOGY
THIS IS NOT A LANGUAGE COURSE!! terminology is just inherent to the course.
You will be expected to be able to know your way in the English language enough for the professor to
understand what you’re trying to say (so the use of language is not the major point of focus in this course or on
the exam)!
1.2. SOURCES IN COMMON LAW
In common law, there’s no formal list of sources, unlike in continental legal systems.
Source in common law is case law and customs as they are developed in common law
The most common source of new rules today is the legislation and since recently the European Law
can be used as a source of law
Though, the original source of common law is reason
Equity, reason and good sense most primal sources of legal rules according to Lord Mansfield
(1773)
For common law the most prominent source is said to be logical reason, for equity it is said to be
moral reason
Legal rules should be looked at from the point of view of Justice and interpreted
accordingly but in some situations the pure logical reason interpretation of legal rules
could lead to unfair and unjust outcomes, therefore equity needs to be used by using
moral reason to interpret certain rules.
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 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
= we need to “understand” the law, know the reason behind legal rules to actually know the law
WHERE CAN WE FIND LAW?
Orthodox legal sources :
Parliament = statutes and statutory instruments parliament is the law-maker
Courts and tribunals = precedents common law
European Union / community
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,1.3. LEGISLATION
Parliament as a rule-maker
Parliament is the most important law-maker in terms of volume of rules created but also in terms of hierarchy
so they make the most rules and are the highest legal power in the UK
The parliament is a sovereign and supreme entity and therefore has the ultimate decision-making
power = parliamentary sovereignty (in UK)
No court can question the legislation made by parliament BUT this does NOT mean the
government is sovereign (parliament and government are two different things)
Position of the parliament was settled in the Bill of Rights in 1689
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Supreme Court
decision that emphasizes the importance of the sovereignty of parliament
The former case was consolidated with Cherry and others (Respondents) v Advocate
General for Scotland (Appellant) (Scotland) [2019] UKSC 41
Also important to know : legislation is written in very precise language by specialized legal draftsmen and is
NOT subject to judicial review by judges.
A typical piece of legislation is called a statute
Children Act 1989 Chapter 41 – PART I INTRODUCTORY
UK Statutes Crown Copyright. Entry into force : October 14, 1991
S 1 Welfare of the childe
(1) When a court determines any question with respect to –
(a) The upbringing of a child; or
(b) The administration of a child’s property or the application of any income arising from it, the
child’s welfare shall be the court’s paramount consideration
(2) In any proceedings in which any question with respect tot the upbringing of a child arises, the
court shall have regard to the general principle that any delay in determining the question is likely
to prejudice the welfare of the child…
1.4. STATUTORY INTERPRETATION
Statutory interpretation = interpretation of primary legislation the process by which courts interpret and
apply the meaning of statutes (laws) when resolving legal disputes
Even though the highly skilled work of the parliamentary legal draftsmen is aimed to make the law clear and to
avoid the need for statutory interpretation, statutory interpretation is often still needed for a variety of reasons
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, Judges can be hostile to legislation, preferring not to assist the legislator in achieving the aims of the
statute
The Interpretation Act (1978) defines many words and phrases, these definitions should be used to
interpret statutes. The rest is left to the court to deal with = courts have developed own rules of
statutory interpretation
Statutory interpretation is needed for unclear wording, to avoid absurd circumstances, for protection
of human rights etc. (infra)
Background reading : The Law Commission (21) and The Interpretation of Statutes (1969)
Terminology :
To construe = to interpret
Construction = interpretation
So why do we need statutory interpretation?
Unclear wording in legislation
Too broad wording
New developments since a certain statute was introduced
Drafting mistakes = errors or oversights made during the process of creating legislation
Change in the meaning of words
Mistakes made in the legislation
A. THE LITERAL RULE
Implementing the literal rule means you use the ordinary and natural meaning of words used in the statute
itself. There is no ambiguity (it’s not open to any other interpretation than the actual words given)
Important case-law / precedents :
Sussex Peerage Claim (1844) :
“The only rule for the construction of Acts of Parliament is, that they should be construed according to
the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such a case, best declare the intention of the
lawgiver.” (Per Tindal CJ, at 143)
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