Anglais juridique

Anglais juridique (institutions britanniques)

Magali JULIAN

CM : 10 septembre 2015

I.The origins of Common law

Great Britain : England, Wales, Scotland.

United Kingdom : Great Britain + Northern Ireland.

British Isles : Everything : All Great Britain + Isles

We'll talk to the institutions of Great Britain : But in Scotland, the legal system is different.

UK is a parlementary monarchy which has a centralize system of government with his seat in London. Divided in 3 differents branchs : legilature, executive and the judiciary. The Queen at the head of this system (the monarch).

What is Common Law ?

General system of law, its sources and its particular set of rules established in England and Wales.

-Historical :

Started in 1066 with Norman the Conquest. William I the conqueror appointed itinerant justices (juges) to go around the country and find the best laws for keep the costum and find news laws. The Sheriff and the aristocrat made the law. Lots of differences between the differents regions.

1154-1189, Henry II decides to establish a judicial centralisation, a court (Curia Regis) was establish in London and the itinerant justices applies the same law for everywhere. With this system, the aristocrats lose their power, because the laws are in the queen's hands. In criminal cases they need 12 persons (men) to present the case to the intinerant justice, it could be compare like a trial.

Progressively, the justicy become legally train (former).

-Oppose to equity : Common law court et Equity court → 2 tribunaux

Equity is a part of the Common law system that provides remedies (recours) other than damages (dommages et intérêts). When common law develop, people think that it too strict. Equity court is develop, this court try to find a solution more satisfactory. The common law offers to you to give money for damages, the equity court try to find other solutions like injunction (judge ask the person to applied a contract as it was written), specific performance (the judge ask at the members of the contract to do something specific) or rescission (the judge decides the annulation of a contract).

Judicature Act :1873 : Reform of the Justice System (fusion des 2 tribunaux).

-Oppose to statute (lois écrites)

Common Law :

Refers to the English legal system adopted by many former Commonwealth countries (US, India, New-Zealand, Australia). It is a judge-centred pragmatic approach of law (judges make the law), it concentrates on remedies. Applied on a precedent or create a decision which he decides that it's the best solution for the case.

Julius Caesar and Brutus : Brutus takes a piece of Caesar's marble (marbre) for create a statue and Caesar sues him.

Common law apporach: More practical apporach concentrating not on rights but on remedies : Can Caesar take possession of the statue ? Can he get damages from Brutus for taking his marble ? Can brutus keep the statue ? Can Brutus make Caesar pay him the difference between the value of the statue and the value of the marble ?

Roman law approach : Abstract question of rights and duties : Who owns the statue ?Brutus because he created it or Caesar because the marble is his owned ?

Civil Law:

Refers to the european continental system of law derives essentially from ancient Roman law. It is a codified body of general abstract principles controlling the exercise of judicial discretion (judges interpret the law), it concentrates on rights.

Statutes :Written laws : Act of Parliament.

Common Law : based on case law (Jurisprudence). 400 000 in England today

.All the decisions taken on the past : Biding precedent (Stare decisis). You have to look in the law report if there is a precedent case and if yes, you have to applie the same decision.

Ratio decidendi : become the precedent, essential legal aspect of the decision.

Obiter dictum : the context of the fact, not essential.

II.The British Constitution

Body of rules that regulate the government of a state or nation. This bidy of rules defines the methods by which power may be exercised.

(It is often said that Britain had no written constitution because there isn't one written document that list the rules of constitution.)

It is composed to :Acts of Parliament (essential law), Judicial precedents or case law, the conventions (unwritten custms), parlementary privilegies, and the EU (european union) law.

Most important law :

-Magna Carta (1215) : law is superior to the king (before the king was powerfull), no one should be emprisonned except after having being judge by his pears (pairs).

-Habeas Corpus (1679) : Goes further than the Magna Carta, it estabish against abritrary emprisonment.

-Bill of Rights (1689) : It establish that the parliament is superior to the king.

-Act of Settlement (1701) : It secure the independance of the judges, only a protestant could become a king or queen.

-Act of Union (1707) : Scotland gave up his independence.

-Act of Union (1801) : Union between Great Britain and Island.

-The representation of the People Act ( 1867, 1884, 1928) : Reform the electoral system, progressevely extend the franhise to all the citizens (droit de vote).

-Parliament Act (1911) : It limited the power of the house of lords, limited its rights to veto and delete somes bill.

-Statue of Westiminster (1931) : Created the Commonwealth of nations.

-European Communities Act (1972) : Founding traitee of EU, applied on UK only in 1972.

-Human Right Act (1998) : Applie garanties the rights of European conventions of human rights in UK

-Scotland Act (1998) : devolution : Sotland obtain the right to govern itself.

-House of lords Act (1999): reduce the number of hereditary lords

CM : le 17 septembre 2015

3 basics principal of British Constitution :

• Separation of powers
• Suprematie of the parliament
• The rule of law which are : no sanction without bridge, one law for everyone, individual rights are not secured by a written constitution but by judicial decisions in ordinary law)

III.The Monarchy

A./.Historical background

It is the older constitution of government in the UK, the Magna Carta (1215) is the first attempt to limit the monarch absolutism.

Until 1603 the english and the scottish crowns were separate, but after this date, there is an only monarch. The monarch have the executive power, and he have they power by the divine right.

The civil right and the execution of Charles I it let to be acceptantce of suprematie of the parliament?

From 1649 to 1660, England was republic, during this short period, the monarchy and the house of lords were abolished and the suprematie of the parliament was established especially by the Bill of Right (accepted by William and Mary after the glorious revolution of 1688).

In XVIII century, we saw the development of different political parties, the emergence of the prime minister figure and progressively until the XIX century we see the development of the franchise (droit de vote). It's only in XIX century thant Britain became the constitutionnal monarchy that we know today.

“The Queen reigns but does not rule” : The power of the Queen are limited by rules and convention.

The British Queen personify the state, she is the head of the executive, she is an integral part of the legislature, she is the head of the judiciary, she is also the commender in chief of all the armed forces and she is the supreme governor of the church. Everything is done in the name of the Queen but concretely, she exercises little powers.

The monarch has 3 rights :

• Right to be consulted
• Right to encourage
• Right to warn (avertir)

The Queen have a stabilizing and unify influence as she is guarantee of continuity (prime minister change but the Queen stay the same). The monarch is a reference to the occupant of the throne.

B./.The Royal prerogative powers

Powers reliating to parliament and government !

She advices the prime minister and she also appoints him. She has three main fonction at the parliament : She can summons (appeler à se réunir, convoquer), prorogues or dissolves the parliament (this is always at the request of prime minister). She read speechs written by the prime minister. The Queen as to be the royal assent. She meets the prime minister every weeks and they discuss of the politic. She receives informations by all the department of state, she is the best informed. She receives the copy of the calender of the cabinet (ordre des ministres).