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UNIVERSITY COLLEGE OF THE CARIBBEAN COMMON LAW REASONING AND INSTITUTIONS Lecturer – C McFarlane WORKSHEET #1 – The English Legal System and the Common Law Tradition INTRODUCTION A thorough and complete understanding of the English Legal System is essential for the successful study of law in the jurisdiction. This course will set the foundation upon which all other legal study is premised. In this course you will learn how to read, understand and more importantly apply case law. You will also learn about the methodology used by judges to interpret statutes. The materials you will receive from London are critical to your success and you are advised to take the recommendations made in the Study Guide very seriously. To some of you the Study Guide may seem somewhat abstract, and at first difficult to understand. This may be because the writers have made the assumption that you understand or are at least familiar with certain key concepts, even though they have not yet explained them. Do not be overly perturbed, instead be persistent in your efforts and your understanding will gradually improve. The purpose of this handout is to:   

Provide you with a roadmap by which to navigate the various topics on the syllabus, by simplifying important concepts; Highlight for you the aspects of the topic that you should pay keen attention to; and Encourage you to develop your ability to think critically.

It is hoped that after reading the handout you will be better able to understand and follow the information in the Study Guide. Throughout the handouts you will notice what I refer to as T.H.I.N.K boxes, these are questions intended to stimulate your minds and develop your ability to think critically! Please answer the questions so that you can actively engage in class discussions. The Examiners have explicitly stated that: “We are looking for deep learning – understanding, application, analysis, reflection – Not rote-learning…. In addition we want you to develop self-reflection, both on your understanding of the subject matter and on the learning process you are engaged in…. You will be expected not only to grasp how certain processes and institutions interact but also to have an opinion about their functioning and development” page 4 of your CLRI Subject Guide This therefore means that you will have to prepare for classes by reading in advance and come prepared for robust discussions. PLEASE NOTE THAT THIS HANDOUT IS NOT INTENDED TO REPLACE THE RECOMMENDED READINGS GIVEN TO YOU BY THE STUDY GUIDE. BE GUIDED ACCORDINGLY. WHAT IS THIS COURSE ALL ABOUT? THE ‘LEGAL SYSTEM’ A simplistic definition of a legal system is: “the machinery which deals with the administration of the law, its institutions, principles and rules in a particular society.” OR “a system for interpreting and enforcing the laws” Of course, the law itself is an integral part of the legal system. Imagine if you will, the legal system to be that of a car, the law is to the legal system what petrol is to a car. Both are integral to the effective functioning of the mechanism. We must therefore attempt to understand the law Prepared by: Caprice McFarlane – This document is not for reproduction, but for your personal use to aid you in preparation for this course. Please do not reproduce or redistribute without permission.

2 in order to understand and appreciate the legal system, bearing in mind at all times that in order to assess the effectiveness of a thing we must first understand its purpose. THE ‘LAW’ One elementary definition of law is “a rule that is backed by a sanction for its breach, ultimately enforceable by a court a tribunal or arbitration.”1 Law is however much more than rules and sanctions, it is also described by Slapper and Kelly as „„a formal mechanism for social control‟‟ The law may be liberating as well as confining, it may bring freedom, but it may also oppress. The law of a society will reflect the culture, ideology and historical development of that society and gives power and authenticity to the rights and obligation of individuals in a society. Law is generally engaged in translating the values and customs of a society into binding legal rules. FUNCTIONS OF LAW IN THE SOCIETY Martin Partington in his book „Law and Society‟: the purposes and functions of law (this is in your study pack provided by London please read it) outlines several functions of law. According to him, they are: Public order; Political order; Social order; Economic order; and International order. 1. Do you agree with Partington‟s compartmentalization of the functions? If you don’t agree, how would you describe the functions of law? If you do agree, how effective do you think law is in fulfilling those functions of your society? 2. Are the following in your perspective correct social functions of law? 1. 2. 3. 4. 5. 6.

Promotes health and a healthy environment; Helps to reinforce the family and protect private life; Helps to keep order in the community; Helps to secure individual‟s freedom; Minimizes unjust equality of opportunity; and Helps to recognize and order private ownership.

MORE FUNCTIONS OF THE LAW? Aubert, in „In search of law‟ (1983) offers six functions of law, they are: 1. 2. 3. 4. 5. 6.

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A means of governance; A way of shaping the behavior of the citizens; A devise for distributing resources and burdens in society; A method of safeguarding expectations; A method of dealing with conflicts and contribution to their solution; and An expression of ideals and values (the young Karl Marx wrote that „law was the people‟s bible book of freedom‟; the older Marx considered that law gave an ideological cover to a more oppressive social reality).

Taken from “Eddy & Darbyshire on The English Legal System

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3 3. Do you agree with the functions as outlined by Aubert? Or are all these authors merely saying the same thing by utilizing different words? Also What do you believe accounted for Marx‟s seemingly divergent views on law? THE NEED FOR LAW? 4. The following is an excerpt from H.L.A Hart „The Concept of Law‟ in which he describes a society without “law” What do you understand from what he has said? Do you agree with his perspective? “If a society is to live by primary rules of obligations [and not laws] there are certain conditions which granted a few of the most obvious truism for about human nature and the world we live in, must clearly be satisfied. The first of these conditions is that the rules must contain in some form restrictions on the free use of violence, theft and deception to which human beings are tempted, but which they must in general repress, if they are to coexist in close proximity to each other. Such rules are in fact always found in the primitive societies that we have knowledge of, together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. Secondly, though a society may exhibit the tension, already described between those who accept the rules and those who reject the rules except where fear of social pressures induces them to conform, it is plain that the latter cannot be more than a minority. TYPES OF LAW Substantive and Procedural Substantive law deals with the study of the rules that regulates, prescribes and proscribes human behavior, e.g. Criminal Law. Procedural law outlines the rules by which the law is enforced in the society. E.g. Criminal Law Practice and Procedure (A course that you will do should you attend the Norman Manley Law School). Civil and Criminal Law Civil Law governs the relations between the ordinary private citizens. E.g. Tort (A tort is a Civil Wrong e.g. Negligence, Private Nuisance etc.). Criminal Law regulates the behavior between the State and its citizens. A criminal offence is deemed to be a wrong against the State and so will be punishable pursuant to due process of law, by the State. Private and Public Law These terms show who the law relates to. Private law governs relationships between private individuals. Public law governs relationship between public State bodies (i.e. the Government and its employees) and the general citizenry. You should note that under the Common Law Legal System this distinction is not material and under the English Legal System the State can enter into private law relationships with individuals. Common Law and Equity As it relates to the English perspective, the common law also distinguishes law developed by the common law courts (traditionally the King‟s Court, namely the Court of Exchequer, Common Pleas and the Kings Bench), as opposed to equity which was developed by the Court of Chancery (historically, this was where the ordinary citizen would go when he had no access to the common law courts or the courts made no provision for his/her particular grievances). The Lord Chancellor would then grant relief based on what is considered fair and equitable and this court was called the Court of Conscience. Both the court of equity and the common law court eventually merged into one. There are today still some remnants of this dichotomy. For example equitable remedies2 (e.g. specific performance) are discretionary whilst common law

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A Legal remedy is a he manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual. Prepared by: Caprice McFarlane – This document is not for reproduction, but for your personal use to aid you in preparation for this course. Please do not reproduce or redistribute without permission.

4 remedies (e.g. damages) are available to the claimant/defendant as of right. The following is an equitable maxim: “He who comes to equity must come with clean hands” 5. What do you understand by this equitable maxim? There are many others, can you think of any?

6. The following have been described as 'Common Fallacies of law‟3 What do you think? Can you think of a few more? The necessity for law originates exclusively in wrongdoing. The law always lags behind social change. Lawyers ought never to represent guilty persons. Law consists only of rules and does not include authoritative policies principles or maxims. The „rule of law‟ applies only to officials and not to lawyers, private citizens or organizations. COMMON LAW AND THE ENGLISH LEGAL SYSTEM The English Legal System is described as a Common Law system. Essentially this simply means that legal principles/rules have been established and developed by judges from case to case into what is known as judicial precedents. There are some who posit that the Common Law system is that which is has been historically developed from the custom of the common people of England. Slapper and Kelly suggest this perspective is romanticized and inaccurate. They argue instead that the common law historically developed out of a struggle for political power. 7. Do your own research on this and form an opinion that you should be able to defend.

The English Legal System has evolved over time and the pieces may not necessarily fit as smoothly and cohesively as one would imagine. It is described as „normative‟ system in that it expresses the society‟s views on what ought to and not merely what is. Consequently, the system is dynamic and evolving, since the forces behind it will not by necessity be stagnant. Indeed the English Legal System may be described as a sub system (part of a whole) of the overall social system and its features reflect the social, economic and cultural norms of the society. There are some authors who seem to use the definition of law and the legal system indifferently, ensure that you are aware of the distinctions. Remember, the law is not the same as the legal system, even though the legal system may be based on the law. As you learn about the system, you are encouraged to critically examine the parts from your own „fresh‟ perspective. From the Examinations perspective, this will show the Examiner that you have moved beyond „rote learning‟ and have actively engaged with, and have a good understanding of the subject. Consider the following excerpt taken from your Study Guide: „In one respect our whole legal system represents a complex set of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity.‟ Taken from Lon Fuller‟s book „The Morality of Law.‟ 8. Do you agree with this definition of the legal system or would you say that that this definition is more suited as a definition of law itself?

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Summers, Robert S: Law its Functions and Limits 2 ed 1972

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5 MORE ABOUT THE LEGAL SYSTEM Based on our discussion thus far concerning the functions and purposes of the law and by extension the legal system, we have identified that the functions of the law may overlap and even contradict or be inconsistent with each other. We have already discussed whether we consider the law to be about coercion, or whether the law is a reflection of the values of the society from which it is derived. (Think of Marx‟s views) As we examine the legal system therefore, we should consider whether it can be seen as an instrument of social control (the law as a sword) or whether it is a reflection of the fundamental values of the society. We have discussed the functions and historical origins of the law, but what of the concepts of justice and moral efficacy of the law? When we think of the legal system do we measure its effectiveness by our own subjective concept of what is considered fair and just to our moral conscience? In assisting us to answer this question, we must keep in our minds the objectives of the criminal and the civil justice system, some of which are:4 CRIMINAL JUSTICE SYSTEM

To punish wrongdoers;

To protect the society; and

To deter people from breaking the law.

CIVIL JUSTICE SYSTEM

To provide a means the means by which civil disputes can be resolved in accordance with principles of fairness and justice; To provide an efficient cost effective systems where cases can be disposed of fairly and speedily according to their merits; and To provide for the citizens access to affordable justice of a high quality.

LEGAL FAMILIES/LEGAL TRADITION/LEGAL SYSTEMS Legal families or legal traditions maybe defined as a term used to group together or identify legal systems with similar core features or characteristics. Normally, these key features will be derived from the religious, political and social ideology of the particular society. Generally, the main characteristics used to define a legal system are: 1. 2. 3. 4.

Objectives of the legal system; Sources of law; Legal reasoning and methodology; and Structures of pre-court and trial proceedings.5

INTRODUCTION In the „Western World‟ there are primarily two dominant legal systems, or legal families; they are the common law system and the Civil or Roman law legal system (also referred to as the Romano-Germanic6 family). The common law world includes the United States of America, most former and existing members of the British Commonwealth, namely Australia, Canada, India, New Zealand and Singapore7 and of course Jamaica. Proponents of the Civil legal system include France, Germany, Denmark, Belgium etc. (With few exceptions, most European nations are a part of this legal family). Not all legal systems however are classified so rigidly as to fall into distinct legal traditions or families. Some are mixtures of these traditions, and may be termed 4

Taken from Study Guide p 22 Taken from Study Guide p 27 6 Eddey & Darbyshire: English Legal System p 11 7 Holland and Webb; Learning Legal Rules p10 5

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6 „hybrid‟ legal systems. In the Commonwealth Caribbean we note two examples of this phenomenon in the islands of St Lucia and the Republic of Guyana.8 (This is outside the scope of your syllabus, but is good information for you to know). COMMON LAW LEGAL SYSTEM – A HISTORICAL OVERVIEW Much is made about the history of the common law system, and in order to fully understand the modern common law system it is important that you appreciate the historical traditions in which it is rooted. The common law system is heralded as the oldest legal system in the modern world. It is derived from historical customs which were said to be consolidated by the Norman Conquest of 1066. As these local customs became unified into one coherent system which was „common to all men‟9 hence the term „common law‟ emerged. Thus, the common law originated from customary law. (customary law may be defined as traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, is treated as a legal requirement though not generally codified as law.) „Customary Law‟ was used in the King‟s court to settle disputes and grievances which directly affected the monarchy. Officials were dispatched to the counties and were known as „travelling judges.‟ They were sent on circuits, hearing pleas in major towns and brought so called royal justice to the common man. The King‟s court of course did not cover every conceivable act but focused mainly on what were deemed to be the more serious offences. The King‟s clerics developed writs (a writ is a royal command ordering the performance of a particular act, it provided a specific remedy for a specific wrong) and established procedures which formed the basis for this fledgling legal system. An action could only be brought in the court by purchasing a writ, if there was no writ to cover your particular problem it was difficult for you to gain audience with the court. One of the predominant features of the English Legal System as a common law system is the heavy reliance on judicial precedents as a major source of law. The gradual development (case by case by case) of the common law has resulted in what some writers view as an ad hoc or piecemeal system. The rationale behind this assertion, it is submitted, is based on the historical view that the common law is generally comprised of unwritten legal rules formulated by the King‟s court in a flexible and informal manner. Note however, that this can no longer said to be the case, for as the common law developed it became more easily identifiable, certain and less flexible, due primarily to the system of case reporting which developed. DIFFERENT MEANINGS OF COMMON LAW You should be aware however that the term „common law‟ is understood to mean different things; it may be used at times in the restricted sense to refer to the aspects of the common law tradition primarily concerned with the legal rules of the system (such as source of law) namely that of judicial precedents. The term is also used however, to refer to a group of related tradition i.e. the common law tradition; it carries a wider scope of meaning and includes other features of the system. 9. Show me that you understand this distinction my listing in your own words two definitions of the term „common law‟ SOURCE OF THE COMMON LAW We have said that the common law originated from local customs of the society. Consequently, there is the assertion by many of the proponents of this legal system that the law is not to be found in the cases themselves, but rather that the cases only make reference to the pre-existing 8 9

Antoine, Rose-Marie Belle – Law and Legal Systems 2 ed p 58 Antoine, Rose-Marie Belle – Law and Legal Systems 2 ed p 58

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7 common law. The unity of the common law is therefore grounded in and derived from the legal principles and maxims of the society, (maxims maybe defined as principles and authorities which that have become a part of the general customs or common law of the land and bind judges when it is argued that they apply to a case.10) on which the decisions of the judges are based. 10. Write what you understand from the preceding paragraph. Tell me if you agree with this statement about the common law, if you do not agree, tell me what you think could be a possible rationale for this statement. ROLE OF ‘EQUITY’ IN THE COMMON LAW The establishment of the common law courts in the early medieval period did not represent the full extent of the Crown‟s jurisdiction. The monarch was known as the „fountain of justice‟ and imbued by the Coronation oath (to do equal and right justice and discretion in mercy and truth – excerpt of the actual oath). He therefore retained residual power to address all the grievances of his subjects. Consequently, the King received many petitions for justice from dissatisfied litigants. In light of the difficulties litigants were facing, „equity‟ developed to “soften and mollify the extremity of the common law”11. These petitions were handled by the Lord Chancellor, as the King‟s representative (the Lord Chancellor was a part of the King‟s Council, also known as the „keeper of the King‟s conscience‟) who was at that time almost always a member of the clergy (the clergy was amongst a limited number of literate men in the realm) and was the keeper of the royal seal. This was necessary as the ordinary ways (through the common law courts) of obtaining justice were not feasible for all, especially the poor who could ill afford the expensive process required to bring an action through the court of Common Pleas. Additionally, there was also the matter of ensuring that the correct writ was chosen and that all the particulars were correct otherwise the case might be lost through some technical or procedural defect. Another major issue was the fact that the common law only provided the remedy of damages, and damages were not always adequate compensation for the loss suffered by the Claimant. Take for instance where the Claimant may desire the Defendant to be restrained from carrying out a particular activity, in such an instant damages would not suffice. Also, the common law did not recognize actions for breaches of contract per se. The common law historically was passed down as an essentially oral tradition amongst a very small legal profession (approximately 50 judges and important lawyers by 1450). The development of the law of trusts illustrates clearly the importance of the role of equity in the legal system. The practice of making trusts (for example, a father giving property to two trusted friends to hold, on trust, for his son until the son reached a certain age) was becoming increasingly popular, especially amongst those who were going off to battle, uncertain of their return. The common law courts, maintaining the „letter of the law‟ did not however recognize such arrangements, the property, as for as they were concerned belonged to the trustees to do as they pleased, therefore the intended beneficiary, the son, could find no redress from the common law courts should the trustees abuse their position. Equity filled this gap by acting in such circumstances to hold the trustees accountable for the „trust‟ placed in them by the parties. Two distinctly different roles therefore emerged; the common law court was primarily concerned with a body of rules applicable to particular facts, whilst equity was concerned with individual cases which were dealt with according to the dictates of „conscience‟.

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Study Guide pp 36 The earl of Oxford‟s Case (1615)

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8 11. It has been submitted that equity developed essentially in answer to perceived injustices of the common law courts. Can you discern any way in which equity itself might engender injustice? 12. Can you also see that having two distinct court systems operating simultaneously may cause difficulties for litigants? Can you think of any such difficulty? Over time the equity of the Chancery Court developed into almost as precise a set of rules as that of the common law. The UK Parliament put an end to these divisions with the Judicature Acts 1873-1875. These Acts established a unified system of courts that were charged with applying both the common law and equity. FEATURES OF THE COMMON LAW 1. One of the essential characteristic of the common law tradition is the structure and development of its legal rules. The legal rules of the common law are often referred to as „soft law‟ or judge made law. 2. Under the common law system legal rules are deemed uncodified or unwritten. There have been numerous attempts to codify English law with no success. 3. Common law incorporates both the legal rules of the common law and the rules of equity. 4. An adoption of inductive form of reasoning. 5. Mode of trial is described as Adversarial. 6. Certain distinct legal traditions originate with the common law i.e. the jury trial. 7. The common law system is dominated by judges as opposed to legal scholars. 8. The common law applies to all legal persons in including the state, unlike the civil law tradition there is not a strong division between public and private law. 9. There doctrine of „separation of power‟ is normally present in the common law system, i.e. the judiciary has an inherent jurisdiction to adjudicate separately from the executive or political processes. CIVIL LAW OR ROMANO-GERMANIC TRADITION/SYSTEM – HISTORIC OVERVIEW The civil or Romano-Germanic tradition has at its historical foundation the laws of ancient Rome The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or citizens. It was developed by scholars in the European universities in the twelfth and thirteenth centuries in response to the need for a coherent consistent law independent of canon law to replace inadequate and piecemeal customary law. The study and refinement of Roman law progressed into its codification and there is, even today, a continued heavy reliance on legal scholars in the civil law traditions. The birth and evolution of the medieval civil law tradition based on Roman law was integral to European legal development. It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists, and it held out the possibility of a comprehensive legal code providing substantive and procedural law for all situations. There are different variations of this legal system. There is the French and German variation. The French code is grounded in the principles of the French Revolution whilst the German code was developed at the end of the 19th Century, premised on Pandectist scholarship. (Pandectists were German university legal scholars in the early 19th century who studied and taught Roman law as a model). There are however still sufficient similarities, based on the outlined criteria to classify these systems as being a part of the same legal family or tradition. Please note that the most fundamental and distinguishing characteristic of the civil legal system is its heavy reliance on statute in the form of a code as the ultimate legal source. Codification is the compilation of legislation, for the purpose of the systematic organization of the legal rules Prepared by: Caprice McFarlane – This document is not for reproduction, but for your personal use to aid you in preparation for this course. Please do not reproduce or redistribute without permission.

9 on a particular subject. Codification is known as „hard law‟ the rules being enshrined in statute its resilience therefore being arguably greater than judge made „soft law‟. 13. In relation to the previous paragraph, can you give an explanation as to why you think „hard law‟ may be seen as more resilient than „soft law‟?

FEATURES OF THE CIVIL LAW SYSTEMS 1. Primary reliance on pre-determined codified legal principles. 2. The separation of public and private law. 3. As officers of the state the judiciary possesses no separate and inherent power to adjudicate. 4. An adoption of a deductive form of reasoning. 5. Mode of trial is described as Inquisitorial. THE CIVIL LEGAL SYSTEM AND THE COMMON LAW LEGAL SYSTEM MODE OF TRIAL COMPARED The common law method of trial is described as adversarial or accusatorial in contrast to the civil law system which incorporates the inquisitorial method. The basic distinction between these two methods is that in the inquisitorial system the court plays a far more dominant role whilst in the adversarial system the judge is supposed to remain a „passive umpire‟, the parties to the dispute acts as adversaries against each other. Please take note of some the following differences between the two systems.12

COMMON LAW SYSTEM

CIVIL LAW SYSTEM

Adversarial/Accusatorial System:

Inquisitorial System:

a) The parties decide which witnesses are to be called; b) The burden of case preparations fall on the parties and not the court; c) Both juries and judges act as tribunal of fact; d) Court room practice is subject to rigid and technical rules; e) Role of the judiciary is more reactive than proactive; f) The expense of litigation falls largely on the parties and not the State; and g) In a litigation process where the trial is the distinct and separate climax to the litigation process.

a) The court calls the witnesses; b) The witnesses are examined by the judges; c) Lawyers play a subsidiary role; d) The method used in the preparation of the case is that of written „dossier‟; e) Some Inquisitorial systems use juries (France) some do not (Germany); f) A large portion of the expense associated with the trial process falls on the State; and g) The rules relating to the court room practices tend to be minimal and uncomplicated.

14. What would you consider to be the main advantages or disadvantages of the common law mode of trial?

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Michael Zander: Cases and Materials on the English Legal System 8 ed chp 4 see also Rose-Marie Antoine: Commonwealth Caribbean Law and Legal System. Prepared by: Caprice McFarlane – This document is not for reproduction, but for your personal use to aid you in preparation for this course. Please do not reproduce or redistribute without permission.