The history of Common Law


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The history of Common Law

  1. 1. Common law as opposed to statutory law and administrative/regulatory law  Connotation 1 distinguishes the authority which promulgated a law. For example, most areas of law in most Anglo-Americanjurisdictions include: "statutory law", enacted by a legislature; "regulatory law", promulgated by executive branch agencies pursuant to delegation of rule-making authority by the legislature; and common law or "case law", i.e., precedent-setting decisions issued by courts(or by quasi-judicial tribunals within agencies).[14][15] This first connotation can be further differentiated into:
  2. 2.  Pure common lawarising from the traditional and inherent authority of courts to define the law, even in the absence of an underlying statute. Examples include most pre-20th Century criminal law and procedural law, plus most modern contract law and the law of torts.interstitial common lawconsists of court decisions which analyze, interpret and determine the fine boundaries and distinctions in the law that is promulgated by other bodies. This body of common law includes judicial interpretation of the Constitution, legislative statutes, and/or agency regulations, and involves the application of law to the specific facts of a matter.
  3. 3. Ontario Ontario is one of the ten provinces of Canada, located in east-central Canada. It is Canada's most populous province by a large margin, accounting for nearly 40% of all Canadians, and is the second largest province in total area.
  4. 4. Ontario has grown, from its roots in Upper Canada, into a modern jurisdiction. The old titles of the chief law officers, the Attorney-General and the Solicitor-General, remain in use. They both are responsible to the Legislature. The Attorney- General drafts the laws and is responsible for criminal prosecutions and the administration of justice, while the Solicitor-General is responsible for law enforcement and the police services of the province.
  5. 5.  The common law requires an abundance of case law precedent to evolve over time into a fact rich legal framework for purposes of the law’s evolution. This is because the common law, unlike statutory law, is supposed to evolve over time.
  6. 6.  Judicial precedents and overruling of them Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. A judicial precedent is a decision of the court used as a source for future decision making.The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way). The principles of Binding Precedent apply only when the facts must be sufficiently similar and the court must be more senior or on the same level.
  7. 7.  It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. A higher court can overrule a decision made in an earlier case by a lower court eg. the Court of Appeal can overrule an earlier High Court decision. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. The overruling is retrospectively except as regards matters that are res judicata or accounts that have been settled in the meantime.
  8. 8.  The Apex Court or any superior court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles.  On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience.
  9. 9. The common law evolves to meet changing social needs and improved understanding  The common law requires an abundance of case law precedent to evolve over time into a fact rich legal framework for purposes of the law’s evolution. This is because the common law, unlike statutory law, is supposed to evolve over time. The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.
  10. 10. Sources of UK Law  The four principal sources of UK law are legislation, common law, European Union law and the European Convention on Human Rights. There is no single series of documents that contains the whole of the law of the UK.
  11. 11. Common law  The legal system of England and Wales is a common law one, so the decisions of the senior appellate courts become part of the law.
  12. 12. What is it “Quebec”? Quebec - the first of size and the second of population Canada’s province. Quebec is the only province in Canada where the majority of inhabitants are French Canadians. Basically it is the descendants of immigrants who came from France in the 17-18 century. The immigrants who arrived from Europe in the 50s of the 20th century was 90% , in 1995, they accounted for only 31.5%. Immigrants from Asia account for 32% ,from America's 17% and 15% from Africa.
  13. 13. The History of province
  14. 14. Quebec’s Law System  Concept of the legal system in Quebec means that all legislative powers, rights and liberties, political rights and privileges constitute a legal state in Quebec. Coexistence of Anglo-Saxon (in particular, the common law), and Romano-Germanic civil law – is the feature of the legal system in Quebec, called biyuralizm. English contract "Commentaries on the Laws of England" is the main theoretical basis for understanding the use of customary law. However, the Civil Code of Quebec often refers to the tradition of the Roman-Germanic legal system Canada came under British law after the refusal of the French rights to (1763 ) . However, throughout the province continued to be applied equally landlord tenure system . In 1774, the British Parliament passed the Act of Quebec, to restore the old French civil law for private law and has retained the English common law for public law , including criminal prosecution. As a result of modern Quebec - one of the few areas in the world , where two legal systems coexist .Act of Quebec was rejected by the English minority , believe that British citizens should be subject of English law . Constitutional Act of 1791 resolved this dispute by the formation of Upper Canada west of the Ottawa River (where operated English common law) and Lower Canada (along the St. Lawrence River (where civil law was retained) .
  15. 15. Roman law  Roman law, as revealed through ancient legal texts, literature, papyri, wax tablets and inscriptions, covered such facets of everyday Roman life as crime and punishment.  Law became multi- faceted and flexible enough to deal with the changing circumstances of the Roman world, from republican to imperial politics, local to national trade, and state to inter-state politics.
  16. 16. Sources of Roman Law  Twelve Tables ;  Statutes (leges);  senatorial decrees ;  decided cases ;  Custom;  edicts from theEmperor, magistrates
  17. 17.  Initial reception of English common law into new colonies, and adoption of common law on decolonization. The territorial evolution of the British Empire is considered to have begun with the foundation of the English colonial empire in the late 16th century. Since then, many territories around the world have been under the control of the United Kindom or its predecessor states. Sir William Blackstone described the process by which English common law followed English colonization in the way that if an 'uninhabited' or 'infidel' territory is colonized by Britain, then the English law automatically applies in this territory from the moment of colonization; however if the colonized territory has a pre- existing legal system, the native law would apply until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament.
  18. 18.  A number of countries ("dominions") within the British Empire gained independence in stages during the earlier part of the 20th century. Much of the rest of the Empire was dismantled in the twenty years following the end of the SecondWorldWar, starting with the independence of India and Pakistan in 1947.The last significant territory to pass from under British control was Hong Kong, which was handed over to China in 1997.
  19. 19.  As colonies gained independence from Britain, in most cases the newly independent countries adopted English common law precedent as of the date of independence as the default law to carry forward into the new nation, to the extent not explicitly rejected by the newly freed colony's founding documents or government.
  20. 20. In the late 800s, Alfred the Great assembled the Doom book, which collected the existing laws of Kent, Wessex, and Mercia, and attempted to blend in the Mosaic code, Christian principles, and Germanic customs dating as far as the fifth century.
  21. 21. In 1154, Henry II became the first Plantagenet king. Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims.
  22. 22. Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge. Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law.
  23. 23. Reception in Canada The Canadian colonies received the common law and English statutes under Blackstone's principles for the establishment of the legal system of a new colony. In five of the Canadian provinces, English law was received automatically, under the principle of a settled colony inheriting English law. In the other five provinces and the three territories, reception was governed by reception statutes. The reception of English law occurred long before Canada became fully independent, and reception statutes in Canada were not part of the decolonisation
  24. 24.  When Canada achieved formal independence with the passage of the Canada Act 1982, no reception statutes were necessary for the decolonialisation process. English law had already been received in the various Canadian provinces and territories by legislation and judicial decisions over the previous two centuries.
  25. 25. Judiciary(Common- law court system)
  26. 26.  Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas.  These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Common-law courts base their decisionson prior judicial pronouncements rather than on legislativeenactments.Where a statutegoverns the dispute,judicialinterpretationof that statute determineshow the law applies.
  27. 27. There two courts of trial and two courts of appeals for criminals proceedings The courts of trial are The Magistrates’ Court of Appeal The House of Lords. The court of appeal are  The Court of Appeal  The house of Lords
  28. 28. The Magistrates’ Court  Virtually all criminal cases start here  Deals with summary offences  Has limited powers of penalty but may commit a convicted offender to the crown Court if it is considered that the powers of the Magistrates’ Court are insufficient  Approximately 95% of all prosecutions are dealt with in Magistrates’ Court The Crown Court • Is the senior court of trial for criminal offences • The courts are establishedat various centres throughoutthe country • The courts are presided over by eithera High Court judge ? Circuit Judge or Recorder who sits with a jury
  29. 29. Court of Appeals
  30. 30. Common law as a foundation for commercial economies The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States.