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 Consequence: there is no statute which cannot be modified/amended or even repealed by a simple vote of the House of Commons (according to the ordinary legislative procedure).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).
[...] Moreover, equity contains elements which resemble the elements of the rigor of the common law,.i.e., Equity and common law are not two distinct branches of the legal science: they are two distinct sets, body of complementary rules and constituting together the judge made law. ( Equity in its technical sense is an historical accident. It is not a legal necessity to have two different systems within the judge made law. Most legal systems have only one within which Equity (in its popular sense) is to be administrated. [...]
[...] The influence of the professionals of the law was fundamental to the growth of the system Unlike French judges, English judges are not civil servants. Before reaching the Bench, before being appointed as judges in one of the Central Courts, they had to have achieved distinction at the Barr. They should have had a lot of experience as successful barristers. The judges are about 200: they are not numerous; they know each other and work with their future successors. These professional create a ‘seraillure'. [...]
[...] The Position of the English Judge The judge is at the very centre of the legal system. He not only created it, he amended it, adapted it, etc. and he also had and still has a powerful influence on legislation by the way he constructs (interpret) statutes We need to stress that the position of the judge is threefold: - legal - constitutional - political A. The legal position of the judge During the middle ages, the judge was the delegate of the King and he applied rules regarded as precepts of divine law. [...]
[...] The English drafting of statutes is characterized by anxiety not to be misunderstood and by the obsession of draftsmen with judicial hostility towards statutes. That explains why the language of English statutes is worded in such a way as to not provoke opposition. What is normally preferred is a flit prose style as well as traditional and often verbose form. Bennion (parliament council) said that he had been criticized when he once used the phrase “tried his best” instead of “used his best”. [...]
[...] It is not therefore that equity does the same things differently but that it sometimes does some very different things to the Common Law; the trust being the perfect example because the Common Law does not provide an equivalent mechanism of the division of interest in property” Even if English law was free from history, the dual system would be preferable to a unified one in that it brings more flexibility in litigating doctrines which enable Common Law rules to be better applied General Conclusion on Judge-Made Law The Times (1983) by Roger Scruton Chapter II Legislation or Statute Law Vocabulary Une loi = a statute = an Act of Parliament = an Act To inact a statute = promulguer une loi An enactment = tout texte promulgué Statutory To provide= dispose To pass an Act = adopter une loi To repeal an Act = abroger To amend an Act = amender To construe statutes = to interpret Construction of statute = interpretation SECTION Historical Evolution and Two Important Types of Statutes 1. [...]
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