Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer ENGLISH LEGAL SYSTEM ENGLISH LEGAL PROFESSION April 8, 2003

2. Plan for Class • Some basic concepts about common law systems • Some English legal history • Sources of law in English legal system (case law, statute, delegated legislation, custom, equity, treaties, EU law) • We will not focus on EU law in this class even though in some ways it can be seen as the highest source of law

3. Wrap-Up: English Legal History – Development of Common Law/Equity • Remember that equity is based on fairness and natural justice • Also remember that equitable remedies are discretionary • What are some famous maxims of equity?

4. What are Some Famous Maxims of Equity? • He who comes to equity must come with clean hands • Equity will not suffer a wrong to be without a remedy • Delay defeats equity (e.g. laches) • Equity looks to the intent rather than the form

5. 18th and 19th Century Problems with Court of Chancery • Overburdened with work • This led to horrendous delays – see Charles Dickens’ Bleak House

6. Separate Courts Survived Until the Late 19th Century • Despite conflicts over jurisdiction (resolved in the case of law/equity in Equity’s favor in 1615), all these separate royal courts survived for centuries until in the 1870s, they were merged into the present High Court of Justice by the Judicature Acts (1873-1875). • Many of their names survive to this day in the English legal system

7. Not a Total Merger • Although the Court of Queen’s Bench (which is the merged court for the 3 royal courts of King’s Bench, Common Please, and Exchequer) and the Court of Chancery are administratively combined into 2 divisions in th High Court, the Queen’s Bench and Chancery remain separate jurisdictions with separate judges and a distinction in work, and somewhat different procedure. • All courts now administer both common law and equity.

8. The High Court of Justice • Queen’s Bench Division • Chancery Division • Probate, Divorce, and Admiralty Division (separate divisions because under the old system wills and divorce were ecclesiastical and there was a separate admiralty court) – in 1970, this was redistributed (e.g. Admiralty to Queen’s Bench Division) and a Family Division was established.

9. Appellate Courts • 1873-75: Creation of Civil Court of Appeal. Intention was to get rid of the judicial division of House of Lords, but House of Lords as final court of appeal in civil cases was retained by statute in 1876 • 1907: Creation of Court of Criminal Appeal – which became Court of Appeal (Criminal Division) in 1966. Further appeal to House of Lords • 1971: Establishment of Crown Court to hear criminal cases

10. Other courts • Crown court • Magistrates courts • County courts

11. Case Law • Compare the importance of case law as a source of law in the English, French, and U.S. systems • Which is the better approach? Why?

12. Some Pros(?) • Certainty • Detailed application of law to factual circumstances • Free market in legal ideas • Flexible

13. Some Cons(?) • Complex • Rigid • Illogical distinctions/inconsistency • Unpredictability • Unsystematic • Development depends on chance • Lack of reliance on social or economic research

14. Judicial Precedent • What is stare decisis? • In the English system, do judges make law or are they simply declaring what the law is as a neutral decision-maker?

15. Source of Law: Statutes • Statutes are made by Parliament: • House of Lords – reforms: in 1999 hereditary peers reduced from 750 to 92; second stage reform to come: appointed? Elected? Hybrid? • House of Commons • What is parliamentary sovereignty? • See Ruth Rendell, The Blood Doctor, at: http://search.barnesandnoble.com/booksearch/isbninquiry.asp?pwb=1&ean=9781400045044