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1) The civil law system = a system based on acts of legislation with a codified body of general abstract principles which control the exercise of judicial discretion -> all laws are codified and take form of a particular defined act from the catalogue of acts enumerated in a constitution of a state + published in the Official Journal of Laws (of a state/the EU); 2) The common law system = a case-centred and judge-centred system of uncodified laws (judicial decisions) with an ad hoc, pragmatic approach to the particular problems at stake appearing before the courts where judges have their full judicial discretion. Lack of officially published collections of judicial decisions - only law reports. MATERIAL CONSTITUTION -> United Kingdom- lack of a single, core, written constitutional document but a set of laws and principles (norms) from different periods FORMAL CONSTITUTION -> has a "form" of a written document -> laws and principles are codified
*The phenomenon of the European Court of Justice's (ECJ) jurisdiction something in-between the common law and the civil law system: -> the ECJ is (at least in theory) established on the basis of civil law principles common to the Member States; -> the ECJ establishes and builds on a body of case law (in practice) -> it recognises the "precedents" characteristic to the common law system; -> the ECJ is not bound by the doctrine of STARE DECISIS (permanent standing decision) but nevertheless it does not decide individual cases on an ad hoc (case to case) basis -> national courts would be reluctant to refer similar cases to its jurisdiction
DISCUSSION ON THE CHARACTER AND IMPORTANCE OF STATUTE LAW AND COMMON LAW: Statute law: -supporters: Aristotle, Hobbes, Bentham -certainty of precisely formulated general rules -the greater legitimacy of laws enacted by the sovereign authority and, in modern era, by the democratic representatives of people -statutes have no intrinsic evolutionary property--> their quality reflects that of the electoral process--> the legislature is closer to the preferences of the public because of its more direct democratic representativeness--> a static advantage of legislation (a stationary model of law)
Common law: -supporters: Cato, Burke, Hayek -the value of evolving tradition embodied in the history of judicial precedents -hypothesis of its efficiency -judges decide on the basis of precedent and of the rule their consider most appropriate--> the attitudal approach-> a model of decision- making by heterogeneous appellate judges who constantly innovate at the margin upon established precedents--> a dynamic, evolutionary model of law
*The optimal legal system is never pure statute law: -civil law systems are characterised by their reliance on legislation instead of judge-made law -however, social pressures to adopt more efficient institutions should lead to an increased role for case law in civil law jurisdictions--> contemporary ongoing convergence of statute writing and judicial law-making
WHO MAKES THE LAW? I 1 -> a single person (e.g. a minister, a voivode) 2 -> a collective body (e.g. a parliament; a council of ministers) II 1 -> mainly legislative bodies ("the legislative") e.g. parliament 2 -> also executive authorities -> e.g. a minister (a council of ministers) or locally - a voivode
LAW-MAKING PROCESS
(1) acts enacted by a single-person authority: 1 - preparation of the previsions of an act; 2 - acceptance of a draft legal act for its review by a competent authority; 3 - signature of an act by a single-person authority; 4 - announcement of an act
(2) acts enacted by a collective authority: 1 - preparation of the prevision of an act; 2 - submission of the draft legal act for consideration (e.g. according to the Polish law - a draft has to pass through 2 chambers - the Sejm (lower) and the Senate (upper) and through 3 readings that comprise: - discussion on the particular provisions; - amendment; - voting; 3 - signature on behalf of the authority; 4 - promulgation (= announcement) of an act
* According to Art. 88 (1) Polish Constitution => all acts in order to come into force must be announced = promulgated in the Official Journal of Laws (e.g. Dziennik Ustaw, Monitor Polski). Only then they are binding. *VACATIO LEGIS= suspension of the effects of drafted laws- society must adjust to changes
e.g. Precedent decisions of courts constitute acts of acknowledgement of customary norms (because courts address certain customary norms for the first time, recognise them as important, believe they should be binding and in their verdicts they refer to them as to the binding norms => as "the law" that should be obeyed) * In some cases consent is not expressed EXPRESSIS VERBIS (literally) but by "TACIT CONSENT" (silent consent) which is a case in international relationships
CUSTOMARY LAW
- is an important source of international public law; - constitutes the basis of the legal system in the US and Great Britain (medieval English tradition); - has some meaning in statutory law systems, e.g. Germany, Switzerland (in Poland - marginal role) - significant in countries of the "South", also Africa and Asia
-> At the end of the 13th century - the establishment of the common law the unification of the law established by the courts (JUDICIARY LAW and CASE LAW) under strong central authority of the king-> the common law as a guarantee of a unitary legal system under the auspices and control of a centralised power and strong authority of a sovereign king.
The gradual development of the courts from simple adjuncts of the King's Council (the Curia Regis) into autonomous institutions of Courts of Exchequer, Common Pleas and King's Bench (common law courts). The Curia Regis, in the Kingdom of England, was a council of tenants-inchief (those who held lands directly from the King, known as manors) and ecclesiastics that advised the king of England on legislative matters. Three common law courts: Courts of Exchequer- governmental agency; it originated after the Norman Conquest as a financial committee of the Curia Regis. By the reign of Henry II it had a separate organization and was responsible for the collection of the king's revenue as well as for exercising jurisdiction in cases affecting the revenue. Court of Common Pleas (or Common Bench)- covered "common pleas"= actions between subject and subject, which did not concern the king. King's Bench- The name of the supreme court of law in England. It is so called because formerly the king used to sit there in person, the style of the court being still coram ipso rege, before the king himself. During the reign of a queen, it is called the Queen's Bench, and during the protectorate of Cromwell, it was called the Upper Bench.
Plaintiffs were unable to gain access to the three common law courts could directly appeal to the sovereign ->pleas passed for consideration and decision to the Lord Chancellor acting as the King's conscience -> the need for flexibility of courts decisions -> the emergence of a specific court = "The Court of Equity" constituted to deliver "equitable" or "fair" decisions (the principles of settlement based on the judicial sense of equity) The Judicature Acts of 1873-75 combined the common law courts and the Courts of Equity The Courts of Equity= originally in English common law and in several states there were separate courts (often called chancery courts) which handled lawsuits and petitions requesting remedies other than damages, such as writs, injunctions, and specific performance. Gradually the courts of equity have merged with courts of law. Lord Chancellor= a senior and important functionary in the government of the United Kingdom; at present, appointed by the Sovereign on the advice of the Prime Minister
* Conclusion: New precedents may still arise! (an evolutionary model of law)
(1) Foundation of a court's judgement (what is taken into account in the legal proceedings): 1 - OBITER DICTA = the intrinsic, unique and secondary features of the case 2 - RATIO DECIDENDI = the legal reasoning of the essence of the judgement (2) THE PRINCIPLE OF STARE DECISIS= "let the decision stand" (STARE DECISIS ET QUETA NON MOVERE): The principle of the constancy of the decision (of the permanent and unchanging character of the decision) = when the foundation of a court's judgement is established the specific principle can be a basis for settling all similar specific cases in the future => This means a principle of standing by decisions that have been issued--> maintaining the status quo THE PRINCIPLE OF THE PRECEDENT = similar cases should be recognised and settled in a similar manner consistent with the grounds and legal reasoning of the previous cases -> courts are bound by the precedent established by a court of a higher instance -> the precedent may be repealed only by the court which established it or by a court of a higher instance
DIFFERENCES
1) Continental Europe - clear separation of the law-making and the practice of delivering the judicial decisions (judgements) 2) the Anglo-Saxon states - vague distinction between the law-making and the application of the law - when a court settles a specific case, it also establishes a new legal norm through its reasoning - precedents constitute independent sources of the law (independent grounds for courts decisions, obligations / rights of the subjects of law, etc): a) the constitutive theory of precedent - the court is a creator and author of the reasoning that serves as ground for the decision (ralio decidendi); in its decision the court creates a governing and conventional act, a general norm which will be included in the sys. of applicable legal norms;
b) the declaratory theory of precedence - the court formulates the precise wording of the customary rule that was unwritten but recognised as a just and binding by the society ("creation" of the legal norm in a court's decision)
ABSTRACT PRECEDENTS
judgements arising from the proceedings in which individual cases are not heard and settled byt general legal problems are addressed by the highest courts (they constitute court's legislation instruments in-between the interpretation of the already applicable law and the establishment of new norms, i.e. the law-making) -> they may serve as a means for filling the gaps in the law
PUBLIC LAW (1) law regulating the system of public authorities and relations between the state and the society - ensures the protection of collective, general and social interests, common public interests (of the state), etc (2) The subordination relations between parties- parties are not equal to each other and before the law- public authorities have the power of a state control and impose certain duties on the individuals/entities (3) public law is based on absolutely valid regulations (IUS COGENS) - an addressee of the instructions (contained in the norms) must follow them under legal consequences - pubic law cannot be modified by agreements of private persons - if a person has a legal obligation - he/she must fulfil it fully (to act or to cease an act) (4) state authorities act ex officio - they undertake actions even without initiative of the parties (e.g. a prosecutor); (5) The principle of IGNORANTIA IURIS NOCET has no significance - state authorities act even when parties are unaware of the wording of the law (6) Public law- examples: -constitutional law; -administrative law; -criminal law; -financial law; -civil, administrative, criminal procedure; -public international law
Two different ways of understanding the division between private and public law: PUBLIC LAW: actions of the state and its officials vis--vis the individual citizen and forms through which the relationship between them is regulated;
PRIVATE LAW;
private sphere with matters for individuals themselves to regulate, without the interference of the state - its role is limited to provision of the mechanisms for resolving the disputes of the individuals, to decide issues and to enforce decisions Example: PRIVATE LAW -> contract law PUBLIC LAW -> criminal law
1 - civil law - is a form of private law and involves the relationships between individual citizens it is the legal mechanism through which individuals can lodge claims against each other, have their rights adjudicated and enforced. Civil law serves as a means for settling the disputes that arise between individuals and provide legal remedies. It does not deal with punishment as such but with specific legal mechanisms. Example: Smith v. Brown -->Smith brings a claim against Brown e.g. he claims compensation for the damage of his property); -->a plaintiff (claimant) brings a lawsuit against a defendant
2 - Criminal law - is a form of public law and concerns the conduct of different subjects of law that the state disapproves of, controls and want to end. It involves the enforcement of particular forms of behaviour. The state ensures the compliance with the legal norms which it protects. Criminal law deals with such issues as guilt, responsibility and appropriate punishments. Example: The Republic of Poland v. Simpson /or in England: Regina (= Latin for "queen") v. Simpson -->prosecutor/public agency lodges an accusation act against defendant (a suspect becomes an accused)
Civil law-> parties: a claimant (plaintiff) x sues y = x brings a claim against y (defendant) In civil cases individuals or business individuals (= legal) are the parties criminal law-> parties: claimant (plaintiff) <-> defendant/accused a prosecutor (representing the state) prosecutes a defendant (or the accused) Attention: The same event may lead to criminal and civil actions. A crucial distinction between criminal and civil law cases is visible during proceedings - the level of required proof is different - in the criminal cases prosecutor must prove the defendant's guilt "beyond any reasonable doubt", while in civil cases - the level of proof is smaller (art 6 of the Polish Civil Code states that a burden of proof rests upon the plaintiff= he/she who claims something)
2). Procedural law - consists of norms regulating all essential elements of all stages of proceedings before public authorities (e.g. how to collect evidence, how to file for claims) and ways of behaviour of different subjects of law. This is the law on rules of proceeding by the institutions, individuals etc. on their duties, and enforcements of these obligations, on application of the sanctions specified by the substantive law.
Example: civil/ criminal procedural law (procedure)
POLITICAL LAW
law consisting of the norms regulating the structure and organisation of public authorities, their competences and legal forms by means of which they are exercised (e.g. political financial law) 1) The rule of law - the basic concept of all the states 2) The separation of powers - origins => ancient Greek philosophy - shaped by the English and French philosophers: Locke and Montesquieu There should exist three separate distinct powers in the state: the legislative, executive and judicial power -> this prevents from the centralisation of too much power (the system of checks and balances) -> the maintenance of the proper relationships between the three powers guarantees protection from disorder and abuse (mutual control)