Fiches - Anglais juridique : the common law legal system
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FICHES – ANGLAIS L2 S1
Fondamental principles
→ The UK has a common law legal system that covers how all civil and criminal laws are made.
A fondamental part of any legal system is its constitution – def:
- a constiution is a fondamental law wich organizes, distributes and regulates state power.
- it allocates the power between the main institutions, sets out the fundemental jurisdical principles, indicates how the country is going to be governed and garantees the most important rights, freedom and duties.
→ The UK has a non written constitution
- it is not written into a single document but has many written sources : The Magna Carte ( 1215 ), Habeas Corpus, Bill of rights, Acts of Parliament, European Laws and International Laws.
- An unwritten constitution is based on 3 important principles: the separation of powers, the Supremacy of Parliament and the rule of law ( state law is applicale to everyone, no one should be punished unless they have broken a law and rights are secured by court decisions)
- For some it may appear unstable, for others its flexibility it positive.
Common Law and civil law
Common Law | Civil Law |
→ English speaking / anglosaxon world → Based on customs = uncodified → Principle of stare decisis : past judicial decisions become precedents (references) for futur cases → Equity : a judge can choose to ignore a law if the application isn't fair => Interpretation takes a wider part → Employs an adversarial process : confrontation between the defense and the prosecution / lawyers are central and the judge is a referee → Flaw : unstable | → Western Europe / Latin tradition → Based on a written foundation = codified → Court decisions are based on laws and statuts → Employs an inquisitorial process : the judge is the principal actor, he examins evidence and witnesses → Flaw : doesn't leave much space to interpretation |
Vocab:
- substantive law = loi de fond
- procedural law = loi de forme
The history of the Common law ( 11th - 13th century )
→ Local rules
Prior to the Normam Conquest ( 1066 ), there was no unitary legal system, only oral customary rules that varied according to regions and lords. After 1066, William the I codified and modernized laws.
→ The Kings justice
Then Henry II ( 1154- 1189 ) institutionalized common law by creating a unified court system
common to the country by incorporating and elevating local custom to national level.
Judges of the realm ( les juges du royaume ) went on regular journeys throughout the country bringing the King's justice to the citizens in order to install a “common law”. And since they were travelling judges they were much less susceptible to corruption.
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