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Introduction to Common Law

Seminar 1
Comparison between common law and civil law The lawyers run the system, the government runs the system, judges linked back to government Judges from practicing lawyers Public law aspect, interact with the mainland system Private law or public law

Excessive litigation Reflection and interaction with the Chinese legal system The work submitted electronically, moodle or not

1. The meaning of common law


The common law is found in the contrast that the context implies Local law, 1066, England was conquered by the French, the law became common, general law, the law applied to the whole kingdom, created by courts, set up by Norman king Legislation, written law, act by parliament, ordinance, unwritten law, Equity, another branch of law, historical reasons, 13 century, a separate court from common law court, separate body of law, court of equity, one legal system, essentially acted as a check of the common law court, to supplement the common law, as a remedy, to create trust, legal ownership of property, equitable ownership of property Foreign law, not part of the common law system in hk English common law and the common law of HK, law of hk, two systems, English law, Roman law, principles of the common law, common law system applied to us is different, HK and AUS is closed to the English system Civil law, their rule and origin from the Roman law, codification in France and Germany, common law system is not codified, Chinese codification??

2. The major differences between common law and civilian law


Unproductive debate: Chinas legal system?

1. Origins-English courts versus imported Roman law through university learning Common law: creation of practicing lawyer, Roman law rediscover, 2. Common law more unified than civil law no longer true 3. The role of case law precedent (stare decisis) Parliament statutes prevail case law A loose doctrine, escape the false precedent, not applies to every Supreme Court, is not bound by its previous decision, House of lord, Lord Chancellor 4. The role of statute law and of the legislature codification, interpretation and creativity Most of the law in common law jurisdiction is from legislature, and the court is to interpret the act and statute. 5. Judicial versus professional law note the American restatement 6. The role of history codification breaks with the past, but is common law more historical? 7. The administration of justice special courts; and the role of judges, juries and lawyers. Note ADR Not have special court, specialized tribunal Common law trained lawyers but not judges Common law used to make a lot of juries, ordinary people, some matters in criminal and civil case. Most Confined to serious criminal trial A great movement toward ADR, mediation, compulsory, great change

3. The Theoretical understanding of law in common law systems


1. Positivist theory 2. Law is posited, what is laid down, it is what it is simply because it comes from a source that empirically creates, or is recognised as creating law, such as legislation or the decisions of judges. 3. Hobbes has an early version: law is command, john Austin 4. The legal system is self-contained legal rules are traceable to the basic law or source (grundnorm) (Hans Kelsen)

5. Legal rules are separate from moral rules 6. Separation of powers means that only legislatures not courts make law 7. The real challenges to positivism come from America First, Oliver Wendell Holmes, stressing the substantive considerations that underly formal legal reasoning (pp 46-47) Secondly, the realists who argued, among other things, that formal reasoning in law was used to achieve desired ends (instrumentalist view of law), some stressing that this was possible because law is inherently indeterminate and - The economic analysis of law (Posner) efficiency? - Critical legal studies true equality? - The feminist analysis of law the womens voice? See Posner p 64f HLA Hart English pp 53-57 Law is a system of rules (not commands) Rule of recognition No conceptual link between law and morals

Ronald Dworkin (American) (60-62) - Law is broader than a system of rules includes principles, policies, etc - Particularly relevant in hard cases - Each case has one correct ansewer

Seminar 2
1. The History of the Common Law 1066 In the origin the common law is the custom of the people Judges did not invent the common law, is treated as customary law, William Blackstone, first professor of English law in oxford, 1066 Norman Conquest, a policy of standardizing, make it up from various customs in the area, come to be explained, various parts in the kingdom making it into unified law Resolve disputes, Jurisdiction The custom is translated into law through the centralisation of justice in England

after the Norman Conquest (in 1066) The common law is a formulary system, that lasts until the end of the nineteenth century A feudal, agricultural society, Trial maybe local, jury from local, procedural framework, established the cases as formula, bring your case to kings court, your case fell within those formula, Whether a case fell within a particular formula, bring your action into formula, the formula is precise, arguing extension of formula, developed after 1066, 256 writs, constant pressure to extend writs In tort, duty of care, breach, damages, The common law is supplemented by a system of equity The law was dominated by a professional elite centred at the Inns of Court in London The constitutional background is one struggle between the Monarch, Parliament and the judges The 3 institutions struggle for supremacy 1258, Provision of Oxford, fist statute 1285, Statute of Westminster II Chancellery Judicature Act 1875, common law comes first, and courts of common law and courts of equity combine, How you actually argue the case, what points do you use, moot, mock trial, Rule of law operating in themselves, self-contained, No a clear distinction of private and public, did u have a case? It did not matter who the defendant really was Habeas corpus, an action English courts come to allow, remedies

Magna Carta 1215 Extraordinary taxation should only be allowed with the consent of the kings council (later Parliament) No person should be put on trial unless there were credible witnesses No imprisonment or punishment except after the judgment of peers (trial by jury) Justice should not be sold, refused or delayed (justice delayed is justice denied) Freedom of movement Later constitutional documents Act of Supremacy 1534 (during the reign of Henry VIII 1509-1547) (King declared head of Church of England) Power corrupts, absolute power corrupts absolutely Protestant, against the roman church corruption Male eggs, take over the throne Political power, but not religious belief, England became isolated from Europe, divergent from Europe, no consent from the church, England to be a protestant country, parliament made monarch to be the head of church of England Parliament decided who should be the queen or king, Bill of rights 1689 - No taxation except by parliament - No royal power to suspend laws - No standing army during times of peace - Freedom of speech in parliament - No excessive bail and no cruel and unusual punishment, hang\cut into four pieces - Parliament must be held regularly Act of Settlement 1701 Secured the protestant succession to the throne - Effect was that parliament now determined who would be King or Queen Guarantee of judicial independence - Judges to hold office during good behaviour, salaries not to be altered, and

removal by parliament once you are a judge, you are always a judge One rule of law, parliament is supreme The end of the 19th century, parliament became democratic institution Relationship of the judges to the king and parliament - Case of Prohibitions 1607, king could not decide cases personally - Case of Proclamations 1611, king could not create new crimes by proclamation - Sir Edward Coke, courts could declare Acts of Parliament void if they were against reason. Not accepted, against the reason of common, not reasonable, Dr. Bonhams case Marbury v Madison 5 US 137 (1803) (power of judicial review where a written Constitution) Result: the King is subject to the law, but Parliament is supreme

What the classical common law looks like Pragmatic Historic Collaborative Public Forum Analogical thinking Apply inductive and deductive reasoning

2. The Sources of Common Law Constitution Legislation Case law Custom Opinions of text writers - Doctrine, assertion, analysis International law - Must be incorporated by legislation A V Dicey Subsidiary Source in Common Law Systems Custom eg Law Merchant Opinions of Textwriters, Doctrine

International Law, must generally be incorporated by legislation Pacta Sunt servanda Lus cogens ex aequo et bono Lus est ars aequo et bono Celsus 3. Legislation as a Source of Law Separation of Power Strong Separation of judiciary Executives from the Parliament 4. Case Law as a Source of Law Bound, binds, distinguish

Seminar 3 Seminar 4 Seminar 5


Contract law, idea of consideration, each party, detriment, benefit, abolish consideration, commercial transaction, gift enforced by equity, Consideration, marginalised? Williams v Roffey, an exception to the general rule, Estoppel, equitable doctrine, rule of evidence, rule of common law, you are precluded from a certain of particular situations because of the principle of common law, Australia, Waltons v Maher, equitable estoppel, voluntary promise, The doctrine of estoppel can be used to enforce the exception, voluntary promise, Exchange contract, the contract did not complete, inequity, America, restatement of contracts, injustice Damages, traditionally the primary remedy designed to protect the expectation

interest. Reliance interest, restitution interest, expectation interest Account of profits, restitutionary damages, Undo the contract, mistake, misrepresentation; induce another party to enter into a contract by false statement, fraudulent, negligent, Undue influence, Tort Campbell v MGN Ltd, Unjust enrichment, restitution, no one shall be unjustly enriched at the expense of another, The law of property