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Lesnotities Common Law and legal English
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AVM 2020-2021INTRODUCTION TO COMMON LAW AND
LEGAL ENGLISH
1. INTRODUCTION TO COMMON LAW & ENGLISH LEGAL TERMINOLOGY
COMMON LAW? ENGLISH LEGAL TERMINOLOGY?
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 to the situation prior to the Norman conquest). The Norman conquest was
in 1066.
2. The rules (substantive and procedural) developed by judges; ‘judge-made law’. Most of the rules
are judge-made law.
3. Legal systems based on the English legal system; ‘common law systems’ (as opposed to civil law
systems).
4. Law used in common law courts prior to the reorganization of the court structure in 1873-75 (as
opposed to Equity in the Chancery courts). Law used in courts is one of the most complicated.
Equity is very important.
EU countries with a common law system are:
1. England and Wales; Northern Ireland
2. Republic of Ireland
3. Malta (mixed system with common law)
4. Cyprus
Legal systems of the United Kingdom (VERY IMPORTANT!!)
The United King of Great Britain and Northern Ireland consists of four nations,
with distinct legal systems for:
• England and Wales
• Northern Ireland
• Scotland
Great Britain consists of
• England
• Wales
• Scotland
In this course we will discuss the system of England and Wales
Scotland has a complete distinct legal system from common law.
English legal terminology
This course is not a language course. Terminology is inherent to the course.
English legal terminology can be tricky as English is not a phonetic language so
coming to class can help (e.g. Re Dalziel, Sir Menzies Campbell, stare decisis,…)
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SOURCES
No formal list of sources
• Unlike continental legal systems, there is no formal list of sources.
• The source is caselaw and custom as developed in the common law.
• The most important source of new rules today is legislation.
• Recent addition: European law as a source of legal rules.
The original source is reason
• The source of legal rules is equity, reason and good sense (Lord Mansfield 1773)
• For common law it is said to be logical reason, for equity moral reason
• 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
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
We need to ‘understand’ the law
Where do we find law?
Orthodox legal sources:
• Parliament (statutes & statutory instruments) = law maker
• Courts and tribunals (precedents) (common law)
• European Community/Union
LEGISLATION
Parliament as a rule-maker
• Parliament is the most important law-maker in terms of the volume of rules created but also
in terms of hierarchy.
• Parliament is sovereign and supreme and as such has the ultimate decision-making power =
Parliamentary sovereignty (in the UK): no court can question the legislation made by
Parliament. Government is not sovereign ()
• The position of Parliament was settled in the Bill of Rights (1688/9)
• R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)
Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019]
UKSC 41
Legislation is written in very precise language by specialised legal draftsmen.
Legislation is not subject to judicial review by judges.
A statute (= typical piece of legislation)
Children Act 1989 Chapter 41
PART I INTRODUCTORY
UK Statutes Crown Copyright. Entry into force: October 14, 1991
s 1 Welfare of the child.
(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.
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(2) In any proceedings in which any question with respect to 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.….
STATUTORY INTERPRETATION
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 the interpretation of primary legislation.
However, often interpretation is needed for a variety of reasons.
• 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 in interpreting statutes. The rest are left to the court to deal with. Therefore the courts
have developed their own rules of statutory interpretation.
• It is needed for unclear wording.. (see infra)
Terminology:
• to interpret = to construe
• interpretation = construction
Background reading:
• The Law Commission (21), The Interpretation of Statutes (1969)
Reasons that statutory interpretation is needed:
London and North Eastern Railway Company v Berriman [1946] 1 All ER 255
Mr Berriman was a railway worker who was hit and killed by a train while he was doing maintenance
work. Regulations stated that a lookout should be provided for men working on the other 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 relevant 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 a regulation that a lookout man should be provided was to protect
those working on railway lines.
• unclear wording
• broad wording
• new developments
• drafting mistakes
• change in meaning of words
• mistake in the legislation
STATUTORY INTERPRETATION: HOW?
1. THE LITERAL RULE
= Using the ordinary and natural meaning of the words used. There is no ambiguity.
- 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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- Lord Diplock, Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 157C
“…it cannot be too strongly emphasised that the British constitution, though largely unwritten, is
firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret
them . . .Where the meaning of the statutory words is plain and unambiguous it is not then for the
judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning
because they consider the consequences for doing so would be inexpedient, or even unjust or
immoral.”
- Lord Reid in Pinner v Everett [1969] 1 WLR 1266:
“In determining the meaning of any word or phrase in a statute, the first question to ask is always
what is the natural and ordinary meaning of that word or phrase in its context in the statute.”
- Whitely v Chappel (1868) LR 4 QB 147
Act made it offence to impersonate ‘any person entitled to vote at an election.’ 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 no offence was committed.
→ You cannot impersonate someone who is entitled to vote
- R v Harris (1836) 7 C & P 446
In this case an Act was passed making it an offence to “stab, cut, or wound any person”. Harris bit
off his victim’s nose. Did he commit the offence? The court held that he would have required use
of an instrument/implement (e.g. a knife). His conviction was quashed.
→ You cannot stab, cut, or wound any person. Court held that it was required to use an
instrument/implement
- Fisher v Bell [1961] 1 QB 394
Restriction of Offensive Weapons Act 1959: offence to offer for sale certain offensive weapons
including flick knives.
James Bell displayed a flick knife in his shop window. The Divisional Court gave the statute a literal
meaning: Mr Bell had not offered the knives for sale.
A technical interpretation of contract law qualifies placing something in a shop window not as an
offer for sale but as an invitation to treat. The potential customer can then make an offer.
The court upheld that under the literal meaning of offer, the shopkeeper had not made an offer to
sell and so was not guilty of the offence. Parliament subsequently changed the law to make it clear
that displaying a flick knife in a shop window was an offence.
PROS CONS
▪ literal rule respects supremacy of parliament ▪ can lead to absurd results
▪ encourages careful drafting ▪ ignores the limitations and ambiguities inherent
▪ promotes clear laws that anyone can in the English language
understand. ▪ can be a ploy of judges to ignore Parliament’s
wishes (elected representatives of the people)
2. THE GOLDEN RULE
= The rule essentially requires a court to look at the words in their context if the literal rule leads
to an absurd result.
The rule was clearly stated by Lord Wensleydale in Grey v Pearson (1857 HL Cas 61):
“The grammatical and ordinary sense of the words is to be adhered to unless that would lead
to some absurdity or some repugnance or inconsistency with the rest of the instrument 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.”
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