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TOPIC 1 & 2. AN INTRODUCTION TO THE UNITED STATES AND THE
UK LEGAL SYSTEMS
1) CLASIFICATION OF LEGAL SYSTEMS IN LEGAL FAMILIES
One approach in attempting to divide and classify legal systems of the world has been to place them into legal families or legal tradition. A legal tradition has been defined as a set of deeply rooted historically conditioned attitudes about the nature of the law, the role of the law in the society and the political ideology, the organization and operation of a legal system. A legal tradition puts the legal system into cultural perspective.
There had been many attempts in the past to classify legal systems into legal families. In the last century (21 st) legal scholars try to classify national legal systems, which are close or similar to others into legal families. They use different criteria to establish this classification:
• Race
• Language
• Culture
• Substantive content of laws
• Ideology, philosophy, conceptions of justice and legal technique
• Historical origins
• Juristic style: Historical background and development, mode of legal
thinking, distinctive institutions, sources of law, ideology.
AUTHOR AND CRITERIA CLASSIFICATION Arminjon/Nolde/Wolf (1950): Substantive content of laws
French, German, Nordic, English, Russian, Islamic and Hindu groups David (1964): Conception of justice and legal technique.
This system is based on the
Romano-Germanic subgroup, Anglo- Saxon subgroup, Soviet Law, Muslim Law, Hindu Law and Chinese Law
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foundation of private law, mainly on the Western nation states.
Zweigert/Kötz (1969-71): Juristic style.
Roman family, German family, Anglo- American family, Scandinavian family, Socialist family, Religious family (Muslim and Hindu Law), and family of the laws of the Far East (China, Japan)
In third edition of Zweigert and Kotz classification (1998) while acknowledging that the division of the world into legal families and the inclusion of systems in a particular family is vulnerable to alteration by historical development and change, and objections to the method of classification must be taken seriously, it is the best method of classification that has appeared.
The classifications made by different authors using different criteria present similar results. There are:
• The common law family
• The civil law family :
• Roman legal systems
• German legal systems
• Scandinavian legal system
• The religious family :
• Islamic law
• Hindu countries
• Family of the Far Eastern :
• Japan
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sovereign judge and source of justice, and to discharge his responsibility for the preservation of peace; he established his own courts with judges.
Common law was expanded by sending royal judges throughout the country. Their decisions were recorded and filed and it is the origin of precedents and doctrine of stare decisis.
The crown established new forms of legal actions through a system of writs or royal orders that provided a specific remedy for a specific wrong.
- Writ Writers: They are the only people who can issue writs. They are king’s representatives. If there is no writ there is any remedy. They created the first uniform rules and the first basis of uniformity in the legal order by establishing legal norms, which were common throughout the whole country.
In the 14 th^ century , the system of writs became highly formalized and too rigid to achieve justice and a new court was created: court of equity or Court of Chancery. It applied principles of equity based on many sources (Roman law, natural law...). Common law and equity were applied within British colonies across continents. Courts of law and Courts of equity functioned separately until they were merged by Judicature Acts of 1873 and 1875 , which created the Supreme Court of Judicature. However, some US States maintain separate courts of equity.
The established body of legal rules came essentially from judicial decisions. According to the declarative (or customary) theory, these decisions were merely the concrete expression or evidence of the common law, which had a permanent and universal existence. According to the creative (or judicial) theory, the modern and more frank position is to recognize that the decided cases were the very source and the essence of law.
3) MOST IMPORTANT DIFFERENCES
BETWEEN COMMON LAW AND CIVIL LAW
LEGAL SYSTEMS
All legal systems have the same purpose of regulating and harmonizing the human
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activity within their respective societies, and in each society the legal system forms part of the culture and civilization as well as of the history and the life of its people.
TOPIC CIVIL LAW COMMON LAW Origin Roman Law English customs and king’s decisions Main source of law Codes and statutes Precedents Stability / Flexibility Stable systems Flexible systems Scope of application Continental Europe and countries that received the civil law tradition as colonies
England and the countries that received the common law tradition as colonies
Role of judges 1. Passive role
2. Judicial inquiry
1. Active role (in
creation of law)
2. Inquiry made by
the parties Legal education / Research
Based on legislation Based on precedents
Jury Exceptional use Important role in private law cases Training of judges Particular training (official exam)
No particular training (lawyers with some years of experience and reputation) Form of court decisions
1. Judges are
anonymous
2. Shorter
1. Judges are
identified in opinions
2. Longer
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• Vertical effect : Judges of lower courts are bound to decisions of
higher courts, even if the lower court considers that the decision is not right.
• Horizontal effect : Precedents are binding for current decisions of
the court that rendered the precedent.
• In England, the House of Lords reversed this rule. The Practice
Statement [1966] 1 WLR 1234 stated that “(...) too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. [Their Lordships] propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so ”.
CIVIL LAW
Inquisitorial process : judges take an active role in trial and legal representatives and parties act only to aid and collaborate with the judicial inquiry
Adversarial proces opposing sides, and t referee. The work of collecting is accomplished by th of the judge is to stru the parties and to m achieved.
Other differences:
4) OVERVIEW OF THE US AND UK COURT SYSTEMS
UK COURT SYSTEM:
Within the English legal system there are a larger number of courts. They vary from small courts, which have a limited jurisdiction over a particular geographical area or a particular type of dispute, to courts, which can hear any case. English courts are organized as a pyramid. As the top of the pyramid there are nowadays the supreme courts (until 2005 there was the house of the lords; since 2005 the house of lords transferred its judicial functions, only the judicial, to the supreme court).
Traditionally English courts are divided into civil courts and criminal ones instead there are many courts that exercise jurisdiction in both civil and criminal matters.
CIVIL COURTS CRIMINAL COURTS Courts that deal primarily with civil matters:
- The county court
- The High Court
- The Court of Appeal (Civil Division)
- The Supreme Court (formerly, House of Lords)
Courts that deal primarily with criminal matters:
- Magistrate’s courts
- Crown Court
- Court of Appeal (Criminal Division)
Civil matters:
- Relationships between individual people (contracts, family law, torts)
- Relationships between individuals and state (disputes about tax, actions of a local authority or other public body)
- In civil proceedings a claimant (plaintiff) sues a defendant or makes an application for an order of the court. When civil cases are reported, the cases are referred o by the names of the parties involved in the dispute (X v. Y). The ‘v’ is pronounced ‘and’ to signify that is a civil case.
Criminal matters :
- Any breach of the criminal law
- When criminal cases are reported the ‘v’ is pronounced ‘against’ to signify that is a criminal case.
• As a general rule, judges are barristers or solicitors, non-trained
lawyers who have become judges, unpaid and part-time. Normally they sit in benches of three.
• Jurisdiction: Family cases.
• Appeals are heard by the Family Division of the High Court.
County Court:
• Inferior courts whose decisions are rarely reported.
• They are distributed through the country.
• They hear the vast majority of civil cases.
• Appeals are heard by the Court of Appeal, except for cases of
bankruptcy, which are heard by the High Court.
High Court:
• Superior court whose decisions are frequently reported.
• Appellate and original jurisdiction.
• The High Court is normally a single judge court.
• Three Divisions and Divisional Courts within each Division, which
exercise most of the High Court’s appellate jurisdiction.
• Chancery Division:
• Composition: Chancellor of the High Court and 18 judges.
• Jurisdiction: Equity and trusts, partnership, bankruptcy,
companies, patents, among others.
• Divisional Court hears appeals in certain bankruptcy and land
registration cases.
• Family Division:
• Composition: President and 19 judges.
• Jurisdiction (at first instance or appeals from County Courts):
Matrimonial proceedings, proceedings relating to children...
• Divisional Court hears appeals from Magistrates’ Courts.
• Queen’s Bench Division:
• Composition: Lord Chief Justice and 68 judges.
• Jurisdiction: Contracts, torts, commercial affairs, naval affairs,
judicial review.
• Small civil appellate jurisdiction.
• Depending on the type of case, appeals are heard by the Court of
Appeal or the Supreme Court
Court of Appeal:
• Superior court whose decisions are frequently reported.
• Appellate court.
• It is bound by its own previous decisions.
• Two Divisions: Criminal Division and Civil Division. Both divisions are
usually multi-judge courts with three judges being the norm to hear each case.
• Civil Division:
• General jurisdiction
• Appeals from the High Court and certain cases from county
courts
• Appeals are heard by the Supreme Court.
EU Council or any national government are compatible with EC Treaty.
• Point of interpretation: Requests of the national courts to
interpret points of EU law.
• The Court has also minor jurisdictions dealing with matters
such as disputes between the Community and its staff and disputes under arbitration clauses in contracts entered into by the Community. Finally, the court may be called upon to give its opinion about the compatibility with European law of proposed treaties the Community intends to enter into with non-member states.
US COURT SYSTEM:
• Federal (national) court system established by art. III of the US
Constitution (1789)
SUPREME COURT UNITED STATES SUPREME COURT APPELLATE COURTS U.S. Courts of Appeals
12 Regional Circuit Courts of Appeals
1 U.S. Court of Appeals for the Federal Circuit TRIAL COURTS U.S. District Courts
94 Judicial Districts
U.S. Bankruptcy Courts
U.S. Court of International Trade
U.S. Court of Federal Claims FEDERAL COURTS AND OTHER ENTITIES OUTSIDE THE JUDICIAL BRANCH
Military Courts (Trial and Appellate)
Court Veteran’s Appeals
U.S. Tax Court
Federal administrative agencies and boards
• State court systems of each of the 50 States established by their
State Constitutions. The state courts have the same esquema of the federal ones but the names vary on the states. The state court system is not an inferior system. In US both systems are parallel. The use of one or another court system will depend on the types of cases that have to be sold (jurisdiction).
Federal courts can’t interpret (are not entitled to interpret) the federal constitution. But the state courts can do, subject to final review by the US Supreme Court (federal supreme court).
FEDERAL COURT SYSTEM
Three levels of courts:
US District Courts
• 94 trial courts
Original jurisdiction (civil and criminal cases)
• 94 US Bankruptcy Courts: insolvency cases, except criminal
issues
• Special trial courts:
• Court of International Trade: International trade and custom
issues
• Court of Federal Claims: federal contracts, taking of private
property by the federal government and other monetary claims against the US
• Trial court proceedings are conducted by a single judge
US Circuit Courts of Appeals
Trial Courts:
• Trial Courts of Limited Jurisdiction (specific types of
cases: family court, traffic court, small claims court, etc.)
• Trial Courts of General Jurisdiction (civil and criminal
cases)
Intermediate Appellate Courts (in some States):
• Different names: Circuit Courts, Superior Courts, Courts of
Common Pleas, Supreme Courts, etc.
Highest State Courts:
• Different names: Supreme Courts, Courts of Appeal, etc.
JURISDICTION OF FEDERAL AND STATE COURTS
STATE COURTS FEDERAL COURTS STATE OR FEDERAL
COURTS
- State constitutional issues and cases involving state laws or regulations
2. Family law issues
3. Real property
issues
- Most private contract disputes (except those resolved under bankruptcy law)
- Most issues involving the regulation of trades and professions
- Most professional
- Most cases involving federal laws or regulations
- Matters involving interstate and international commerce, including airline and railroad regulation
- Cases involving securities and commodities regulation, including takeover of publicly held corporations
4. Admiralty cases
5.International trade law
- Federal constitutional issues
- Certain civil rights claims
- "Class action" cases
- Environmental regulations
- Certain disputes involving federal law
Key concepts :
• Through judicial interpretation of the 14th Amendment of the U.S.
Constitution, most of the provisions of the Federal Bill of Rights have become incorporated (or made applicable) to the states.
• State courts can interpret the U.S. Constitution subject to final review
by the U.S. Supreme Court.
• Federal Courts cannot interpret State Constitutions or state law.
malpractice issues
- Most issues involving the internal governance of business associations such as partnerships and corporations
8.Most personal injury lawsuits
9.Most workers' injury claims
10.Probate and inheritance matters
11.Most traffic violations and registration of motor vehicles
matters
- Patent, copyright, and other intellectual property issues 7.Cases involving rights under treaties, foreign states, and foreign nationals 8.State law disputes when "diversity of citizenship" exists.
9. Bankruptcy
matters
- Disputes between states
