The judicial decisions are the first to be found to develop a system. Today, they are still influencing the system as a whole. Judicial decisions have a weight that their continental counter part does not have. In England, under certain requirements, decisions are biding the judge with the previous decisions, that they are precedents. Judicial decisions are also called 'judge made law' or 'case law', but not jurisprudence. Jurisprudence means the philosophy of Law, the general theory. For historical reasons, the judge made Law in England and Wales is divided into two branches called: the common law and equity. Different judges sitting in different courts (juridiction) and at different times developed two different sets/bodies of judicial rules called common law and equity.
The Common Law family is characterized by three elements:
- No reception of Roman Law: Because at the time the reception occurred in the continent, the English law was already well established. The English lawyers knew what to do and how to do it. They had a method of reasoning and they had a notion of what the law is. They were opposed to the Roman Law. Things would have been different if the English legal system had not been established.
English lawyers did borrow some Roman law rules. You find some Roman law solutions. But there was no reception of the Roman law as a theory.
- England has no text which is a statute above other statutes: No written constitution.
England has no written constitution. It has a constitution in the material sense of the word. Where do you find them? No document prevails over other texts. Consequence: there is no statute which cannot be modified/amended or even repealed by a simple vote of the House of Commons (according to the ordinary legislative procedure). That is true even of fundamental essential and constitutional statutes.
Example: Habeas Corpus 1640, 1679,1817. It's a judicial invention. It's the mother of all civil liberties. When someone is detained, the legality of the detention has to be proved. If the detention is illegal, the Charge will release the detainee.
The Human Rights Act (1998): is an important statute incorporated into the British system, the European convention of Human rights.
England has never had that general and rational principal which is part of the legal system because it is written in statutes dependent on a written constitution.
- In the Romano Germanic family, the general principals that we find in statutes and even better in codes enable us to see that the judge is the servant of the statutes.
In England: many rules have a legislative origin, they have been invented by judges. They still invent rules today when they cannot find a particular rule to deal with the case before them. Either in a statute or in a judicial decision, they have to invent a new rule. They are not in a hierarchy. They are at the same level (statute and judicial decision).
[...] The court often does so by reference to the pre-existing case law. The court will not do that where the statutory provision has been adopted to override an existing Common Law rule. But in such a case, the judge will have recourse to the literal strict approach and it will male the statute say the minimum necessary. Comparison with French civil law: - Civil Lawyers are more concerned with the structure of the law while common lawyers are more concerned with its operation. [...]
[...] = Effect is to be given to community law in case of conflict. Parliament is presumed to legislate in accordance with community law. The courts have modified the normal rule that were there is a conflict between 2 domestics statutes, the last one prevails ( doctrine of the implied repeal ( Decision of the House of Lords Factortame case: in case of conflict between a domestic and an a community statutes, the community rules prevails remarks: the interpretation of a UK statute is still a matter for British courts to decide. [...]
[...] If he had no writ, he had no claim and no right. Ubi remedium ibi jus Where the remedy is, the writ is. If you have a remedy, you have a right. (and not if you have a right you have a remedy If the wrong writ had been chosen by the plaintiff, the Common law judges would throw out the cases without enquiring into the merits of the case (bien fondé de l'affaire). ( the procedure dominated the procedure (cf. Histoire du droit des obligations). [...]
[...] Political Circumstance It is very true that the King had created the central courts of justice. Though he created them, he remained the fountain of all justice (le roi comme fontaine de toute justice). That is true inspite of the fact that his powers had been limited in particular by a peace of legislation Provision of Oxford' and before by the ‘Magna Carta', the great charta. In fact, the king retained an ‘overriding residual power to administer justice outside the regular system of courts. [...]
[...] At the beginning of the development of Equity., those common law judges were rather relevant that the chancellor was bringing solutions to remedy the defects of the common law. Indeed, during that period, the common law judges were working together with the chancery. Things changed with the renaissance. At that time, common law judges prefered the rigor of the rule to the human construction of the rule. In other words, they seized to administer Equity in its wide sense (popular). They were proud of what they had achieved. Those common law judges also refused to become the judges of the facts. [...]
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