Samenvatting Common Law and Legal English AJ 24-25
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Course
Introduction to Common Law and Legal English
Institution
Vrije Universiteit Brussel (VUB)
Toelichting document:
- Ik heb me altijd gebaseerd op de powerpoints en voor veel zaken nog zelf verder opgezocht
wat het nu echt wil betekenen (er zit veel opzoekwerk in).
- Dit document bevat zeer kort powerpoint 3 - historiek (normaliter vraagt ze daar niet echt iets
van op het examen.
- Po...
Algemene tips na het afleggen van het examen:
- Je kan de zaken best uitleggen in haar bewoordingen (ik bedoel dan bv. de Bristol case) - op
zich is het in je eigen woorden ook goed, maar je moet echt kunnen aantonen dat je het
begrijpt;
- Weten hoe een zaak kan aanhangig gemaakt worden bij de Crown’s Court;
- De voorwaarde “per curiam" in de Bristol case is heel heel heel belangrijk;
- Bereid je voor op bijvragen;
- Op zich is ze wel vriendelijk en lief tijdens het examen, maar ze verbetert wel streng. Je kan
alle basisvragen juist hebben maar vastlopen of blokkeren op de bijvragen en dan zal ze je
waarschijnlijk niet doorlaten;
- Goed de achtergrond kennen van je briefing note.
Toelichting document:
- Ik heb me altijd gebaseerd op de powerpoints en voor veel zaken nog zelf verder opgezocht
wat het nu echt wil betekenen (er zit veel opzoekwerk in).
- Dit document bevat zeer kort powerpoint 3 - historiek (normaliter vraagt ze daar niet echt iets
van op het examen.
- Powerpoint 4 (Adversarial System) is beperkt en niet volledig. Aangezien deze wel voor zich
spreekt.
- Met dit document heb je echt een zeer goede basis om te slagen voor dit vak. Ik zou nog iets
meer focus leggen op de cases (Bristol en Donoghue) toon dat je die echt begrijpt.
POWERPOINT 1.
WOMAN ON THE FIRST SLIDE = BRENDA HALE, FORMER PRESIDENT OF THE
SUPREME COURT. EU COUNTRIES WITH A COMMON LAW SYSTEM: REPUBLIC
OF IRELAND, MALTA AND CYPRUS. GB CONSISTS OF ENGLAND, WALES AND
SCOTLAND.
A. COMMON LAW HAS 4 MEANINGS.
Law developed by judges in the 11th and Before the Norman Conquest, England
12th century to form a ‘common’ law for had a fragmented system of local laws.
the whole country (as opposed to the Each region followed its own customs
situation prior to the Norman conquest). and traditions, leading to inconsistent
and often unfair outcomes, with no
centralized or unified legal framework.
After the Norman Conquest (1066),
judges developed a uniform legal order
in the 11th and 12th centuries. They
replaced local customs with a coherent
legal system known as common law,
, based on judicial decisions (precedents)
that applied throughout the country.
The rules (substantive and procedural) Common law refers to rules created
developed by judges; “judge made-law” through judicial decisions, not written
statutes. Judges interpret and apply law
in specific cases, and their decisions
(precedents) shape future rulings,
forming a system of "judge-made law."
Legal systems based on the English legal Common law refers to legal systems
system; ‘common law systems’ (as derived from the English legal system,
opposed to civil law systems). often used in countries like the UK, US,
and Canada. These systems rely heavily
on judicial precedents, unlike civil law
systems, which are based on codified
laws.
Law used in common law courts prior to Common law also denotes the law
the reorganization of the court structure applied in common law courts before the
in 1873-75 (as opposed to Equity in the legal system reform in 1873–75.
Chancery courts).
B. WHERE DO WE FIND LAW
1. THE PARLIAMENT AS A RULE MAKER
- Parliament is the most significant law-making body in the UK, both in terms of
the quantity of rules created and its position in the hierarchy. It is sovereign and
supreme, meaning it holds the ultimate decision-making authority. This principle
was formally established in the Bill of Rights (1688/89), which limited the powers of
the monarchy and confirmed the dominance of Parliament.
- (! IMPORTANT) THEY DO HAVE A DEVOLVED GOVERNMENT, WHICH
MEANS THAT THE BRITISH PARLIAMENT CAN TRANSFER CERTAIN
LEGISLATIVE POWERS TO ITS REGIONAL GOVERNMENTS (SCHOTLAND,
WALES AND NORTHERN IRELAND). THEY ARE RESPONSIBLE FOR
HEALTH, EDUCATION, CULTURE, THE ENVIRONMENT AND TRANSPORT.
THE PARLIAMENT STILL HAS THE ULTIMATE POWER AND CAN ALWAYS
CALL THOSE LEGISLATIVE POWERS BACK OR MODIFICATE THEM.
, - Their legislation is written in very precise language and is NOT subject to
judicial review by judges. So that means that judges in the UK cannot
invalidate a law passed by Parliament because Parliament is sovereign.
However, judges can declare that some laws are incompatible with higher
principles, such as human rights (for example under the Human Rights Act
1998). Such a statement does not invalidate the law, but points out
contradictions.
- 4 types of legislation: primary (acts of the parliament), secondary legislation
(statutory instruments, it’s used to to establish detailed rules or regulations that
implement the provisions of the law), tertiary legislation (legislative
arguments) and quasi legislation or soft law.
C. Statutory interpretation
Statutory interpretation is the process where judges clarify the meaning of legislation and
apply it to specific cases. It addresses ambiguities or uncertainties in the wording to ensure
the law is applied fairly, consistently, and in line with the legislature's intent/
1. The literal rule (pro’s: respects supremacy parliament, encourages careful drafting en promotes clear law -
cons: absurd results, ignores the limitations of the english language and can be a way for judges to ignore the PA wishes)
Using the ordinary and natural meaning of the words used.
CASES WHERE THEY DEFINE THE MEANING OF THE LITERAL RULE
Sussex Peerage Claim: “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.”
Lord Diplock in the Duport Steels Ltd vs Sirs: Lord Diplock emphasizes that in
the British system of separation of powers, judges must interpret laws as they are
written. If the statutory words are clear and unambiguous, judges should not invent
ambiguity to avoid applying the law, even if the outcomes seem impractical, unjust,
or immoral.
, R v Harris (Stab, cut or wound): The statute in question made it an offence to
"stab, cut, or wound any person." Using the literal rule, the court interpreted the
words "stab, cut, or wound" in their ordinary and natural meaning. These words
implied the use of an instrument or implement (e.g., a knife or tool). Since biting off
a nose does not involve an instrument, the court held that Harris's actions did not
meet the literal definition his conviction was quashed.
Whitely v. Chappel: The law made it a crime to pretend to be “a person entitled to
vote.” Using the literal rule, the court decided that a dead person, even if still on the
voting register, is not legally allowed to vote. So, the defendant wasn’t guilty of a
crime.
Fisher v. Bell 1961: The Restriction of Offensive Weapons Act 1959 made it an
offence to “offer for sale” certain prohibited weapons, including flick knives. The
court interpreted these words literally, applying their technical meaning under
contract law. According to this interpretation, placing an item in a shop window is
not legally an “offer for sale” but an invitation to treat, meaning an invitation for
customers to make an offer to buy the item.
Since James Bell had only displayed the flick knife in his shop window and had not
technically “offered” it for sale, the court ruled that he had not violated the statute.
2. The golden rule
The Golden Rule of statutory interpretation allows courts to depart from the literal
meaning of words when applying the literal rule would result in an absurd or unjust
outcome.
CASE EXPLAINING WHAT THE GOLDEN RULE IS.
Grey v. Pearson (Lord Wensleydale):
It’s an instrument to use in which case the grammatical and ordinary sense of the
words may be modified so as to avoid the absurdity and inconsistency, but no
farther.
IMPORTANT NOTE: There is no test to determine what is an absurdity. It allows
judges some flexibility in interpreting the statute by defining broadly what is and
what is not an absurd outcome.
Adler v. George
Mr. Adler was charged under Section 3 of the Official Secrets Act 1920 for
obstructing HM Forces near a prohibited place. He was arrested at Marham Royal
Air Force Station, a prohibited place, for this obstruction. He argued he was inside
the prohibited place, not near it. Applying the literal rule would mean obstruction
inside the place was not an offence, but obstruction nearby was, which would be
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