Comparative legal Systems

MAJOR LEGAL SYSTEMS IN THE WORLD TODAY - RENÉ DAVID 1988

FIRST EDITION 1968

SECOND EDITION 1978

THIRD EDITION 1985

MAJOR LEGAL SYSTEMS IN THE WORLD TODAY - RENÉ DAVID 1985 3TH EDITION

HISTORY OF ENGLISH LAW

The law of England wasn't renewed by Roman law or by means of codification, it developed autonomously and was limited influenced by the European continent. The are 4 period in its history:

1. ANGLO-SAXON PERIOD ( ...-1066)

The beginning of the history of English law dates from the end of the Roman occupation, when different Germanic tribes divided England and converted to Christianity. Laws were reduced to writing shortly after the conversion and regulated only very limited aspects of social relationships; the law in force was still made up of strictly local customs.

2. FORMATION OF THE COMMON LAW (1066-1485)

The Norman conquest, with William I who proclaimed the maintenance in force of Anglo-Saxon law, but brought a strong and centralised administrative organisation.

important cases, presided over by the king or his representatives. The king also appointed judges to travel around the country and administer justice in his name. These judges were known as justices in eyre. The feudal system also had a strong influence on the legal system. The king was the ultimate authority and all land was held from him. The nobles, or barons, held their land directly from the king and owed him military service and other obligations. In return, the king provided protection and justice. The legal system was based on precedent and the decisions of the royal courts. The decisions made in these courts became the basis for future rulings and were recorded in law books known as Year Books. In addition to the royal courts, there were also local courts known as manorial courts. These courts were presided over by the lord of the manor and dealt with disputes between the lord and his tenants. Overall, the legal system in feudal England was complex and hierarchical. The king was the ultimate authority, but power was also decentralized to the nobles and local lords. The legal system was based on precedent and the decisions of the royal courts, and local customs played a role in the administration of justice.importantpersonalities and disputes, then some parts became autonomous bodies. These courts intervened in 3 type ofcases: royal finances - COURT OF EXCHEQUER, matters respecting the ownership and possession of land -COURT OF COMMON PLEAS and serious criminal matters affecting the peace of the kingdom - COURT OFKING'S BENCH; soon the division disappeared. All other disputes were settled by the Hundred or CountyCourt, feudal courts, ecclesiatical courts, commercial or municipal courts. Only the royal courts could summonwitnesses and enforce judgements, and only the king, apart from the church, could require the swearing of ahoath; so by the end of the middle ages were in fact the only courts of justice, but became ordinary courts ofgeneral jurisdiction after 1875, until then they were special courts.To press a claim before the king's courts was a favour which the royal authority might or not grant, so theperson had to address his request to the CHANCELLOR asking him to

Deliver a WRIT, which would enable the royal courts to be seized, just upon complaint or petition, of the matter upon the payment of fees to the chancery. There was a list of established situations where the writs were granted automatically, BREVIA DECURSU, and slowly grew. The Statute of Westminster II of 1285 authorised the chancellor to deliver writs in consimili casu, so if there was similarity to others for which the delivery of the writ was already established. Each writ had a fixed procedure. In any given procedure, the plaintiff and the defendant had to be styled by specific wording, any mistake would be fatal to the proceeding; the most followed was the one of the writ of trespass. So REMEDIES PRECEDE RIGHTS, opposite to the continent in which rights were the basis, so in common law selecting the right FORM OF ACTION or writ to convince the court that it had jurisdiction in the matter was the first and most important thing to do. Procedure had a single purpose, the formulation.

ofquestions of fact to be put to the jury. Glanvill and Bracton works gave analyses of the different types of writs inthe court of Westminster; the chronicles the Year Books inform us of the state of the law between 1290 and1536.

The royal courts justified their intervention because of the interest of the crown and kingdom, so other courtsdeclined and with them every idea of private law disappeared in England. The PUBLIC LAW of English lawcomes from the writ, because it was an order given by the king commanding hi officers to order the defendantto act according to the law by satisfying the claim of the plaintiff; if he refused to obey the plaintiff couldproceed against him and his disobedience was of an order of the administration.

Because of their limitedjurisdiction to special cases, the royal courts, as independent branches of the curia regis, were firstly allpolitical than judicial organs because they had to resolve problems involving the interests of the king andkingdom, so many

elements derived from different local customs , then synthesised in a coherent whole, but there were even some elements from Roman law. However Common law was constructed decision by decision, a work of reason whose basis is the GENERAL IMMEMORIAL CUSTOM OF THE REALM, explained and applied by the judges. The rigour of procedures and the need to conform to the traditional framework were the reasons preventing the reception of Roman legal concepts; moreover this forced even a process of anglicisation. These procedures could only be learned through practice.

3. GROWTH OF EQUITY (1485-1832)

Two were the dangers linked to these formalist procedures, that caused the emersion of the rival EQUITY,:- not developing with sufficient freedom to meet the needs of the period- becoming paralysed of the conservatism of the legal world at the time

Due to the many obstacles in a number of cases no just solutions could be found, so the disappointed party seeked another way of obtaining redress: a direct appeal

To the king, the appeal normally passed through the chancellor, that had the responsibility to of guiding his conscience and, if appropriate, would transmit the request to the king for judgement in his council (exceptional).

During the Wars of the Roses it was difficult for the king to be the judge in his council, so the chancellor became more autonomous, so his decision, in the beginning made on the basis of the equity of the case, became systematised with the application of equitable doctrines.

With the absolutism of the Tudors royal prerogative was at the basis and after 1529 the chancellor became independent (favoured by the sovereigns and political consideration), so the petitions were addressed to him as a real judge and he would examine them in observation of a written procedure inspired by Canon law; the substantive principles, taken from Roman and Canon law, which gave more satisfaction to the Renaissance ideas of social good and justice. This caused a dispute between common law and equity.

So Chancery, so in 1616 James I pronounced in favour of the Chancery. The chancellor, as a legal or political figure, was no longer seen as judging on the basis of morality alone and tended to act more and more as a true judge; then was admitted the control by the House of Lords over Chancery's decisions. This is the reason of the DUAL STRUCTURE OF ENGLISH LAW, there's on one side the Common law rules and the RULES OF EQUITY, which complement and correct Common law (today is an integral part of English law, if they need remedial measures there is the Parliament). During the 18th century very important was the absorption of the law merchant of Common law, because until that time it was considered a distinct and international body of law, so the application of it was reserved to merchants as such.

4. THE MODERN PERIOD (1832-...)

The development of legislation is linked to the triumph of democratic ideas and the influence of Jeremy Bentham, so a great work of legal reform and

modernisation was accomplished (1832-1833 and 1852); they paid more attention to the substantive law and it was on this basis that Common law principles were systematically re-organised. THE JUDICATURE ACT (1873-75) changed the judicial organization: all English courts became empowered to apply the rules of both Common law and Equity. However there was no codification and the legal development remained the work of the courts.

The liberalism dominant until 1914 has been replaced by a socialist attempt to create a new social order, this caused a serious crisis for Common law and statutes and regulation now occupy a far more important place, so a range of disputes is resolved through methods that are not from the Common law tradition. An approchement came between English and continental law, encouraged by the needs of international commerce and the realisation of the affinities between European countries, emphasised by the entry of the UK into the European Economic Community (1972).

STRUCTURE OF

ENGLISH LAW

Legislation and judicial decisions do not play the same role in continental and English law. Firstly, there's a difference in the very structure of Romano-Germanic laws and Common law. This difference is not in the ever-changing rules, but in the framework of the law, which is relatively stable. The vocabulary and concepts may modify or abolish any particular rule of a present law, but they hardly modify the language or structure within which the legal reasoning takes place.

For example, in the categories, there's no division in English law between private and public law, but there is between Common law and Equity. Regarding the concepts, there are new concepts such as trust, bailment, trespass (with no meaning in French models) that cannot be translated into the Latin language, because the meaning would be mostly distorted.

LEGAL RULE= evolved through judicial decisions, is something different from the doctrinally systematised or legislatively enunciated regle de droit of the

French jurist; it's framed in less general terms (no distinction between imperative and suppletive rules)

1. LEGAL DIVISIONS AND CONCEPTS

When there's a legal problem there's to consider in which legal category the question should be situated and each branch of law has its specialists that know it intimately, this happens even in English law but for historical reasons its principal divisions are note those found in Roman laws, there is for example Contract, Torts, Real Property, Personal Property, Trusts, Evidence, Bankruptcy…

The reason for the structural differences is in the different histories of the two legal traditions, the Romanist legal tradition is relatively rational and logical because its substantive rules were organised by universities and legislators; English law has evolved quite apart from any real concern for logic and within a framework that was imposed by procedures, it was only recently that legal scholarships have been able to rationalise this framework.

‘The English law of property is divided into personal and real property: by the second one is meant those rights which before the procedural reform were guaranteed by ‘real actions’.’