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Page 1: Comparative Legal Culture

CL4 English Language CL4 English Language and Culture for Businessand Culture for Business

Module III B2Module III B2

Comparative Judicial CulturesComparative Judicial Cultures

Dr. Peter CullenDr. Peter Cullen

www.cl4englishlistening.wordpress.comwww.cl4englishlistening.wordpress.com

Page 2: Comparative Legal Culture

A Comparative Approach to A Comparative Approach to Understanding LawUnderstanding Law

�� Why is a comparative approach useful?Why is a comparative approach useful?

�� to offer other models of law, challenging our ownto offer other models of law, challenging our own

�� to understand the structural contexts in which to understand the structural contexts in which our and other societies functionour and other societies function

�� it is in our nature and tradition to investigate it is in our nature and tradition to investigate each otherseach others’’ legal traditionslegal traditions

Canon vs Common LawCanon vs Common Law

Roman vs Germanic LawRoman vs Germanic Law

�� A comparative approach allows better A comparative approach allows better understanding of differences between understanding of differences between LAWLAW and and RIGHTRIGHT –– fundamental to national unificationfundamental to national unification

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The Sources of Law and the The Sources of Law and the Comparative ApproachComparative Approach

�� Law is created in tradition Law is created in tradition –– it is a social accordit is a social accord

The structures applied to express this accord The structures applied to express this accord generate differences in law from one society to generate differences in law from one society to another.another.

The needs Law must meetThe needs Law must meet

are different from societyare different from society

to societyto society

The languages used toThe languages used to

express these needs areexpress these needs are

contextually definedcontextually defined

A comparative approach must consider the sources that A comparative approach must consider the sources that create law.create law.

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Legal SourcesLegal Sources

�� Why is Law created?Why is Law created?

�� How is Law created?How is Law created?

Law is created in society to establish, obviate andLaw is created in society to establish, obviate and

enforce conditions and limits on human behaviour,enforce conditions and limits on human behaviour,

sanctioning violence and coercion to maintain socialsanctioning violence and coercion to maintain social

respect for the law.respect for the law.

Law IS a social accord.Law IS a social accord.

The Rule of LawThe Rule of Law

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The Rule of LawThe Rule of Law

�� Aristotle: Aristotle: ““The Rule of Law is better than the rule of any The Rule of Law is better than the rule of any

individualindividual””

Law should be universalLaw should be universal

BUTBUT

�� People donPeople don’’t need to understand the rulet need to understand the rule

in order to follow itin order to follow it

�� Rules are not necessarily designed by Rules are not necessarily designed by

conscious intelligenceconscious intelligence

Plato (left) and Aristotle (right) debate the nature of reason(Raffaello)

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The Creation of LawThe Creation of Law

�� Law may be created by perpetuated social behaviour Law may be created by perpetuated social behaviour and enforced according to and enforced according to customcustom

i.e. Reciprocity, vendetta, feudi.e. Reciprocity, vendetta, feud

= oral tradition= oral tradition

�� Law may be created throughLaw may be created through

applied reason applied reason –– necessitating its necessitating its

dissemination in public knowledgedissemination in public knowledge

i.e. Constitutions, modern law = written traditioni.e. Constitutions, modern law = written tradition

The top of the stele of Hammurabi’s Code (Babylon 1792 BC)

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Law and LegitimacyLaw and Legitimacy

�� Rules of social conduct require social Rules of social conduct require social legitimacylegitimacy

Legitmacy takes many forms:Legitmacy takes many forms:

reciprocity reciprocity accordaccord

divine legitimacydivine legitimacy

constitutional legitimacyconstitutional legitimacy

Law based on reciprocity is flexibleLaw based on reciprocity is flexible

and changes as social needs changeand changes as social needs change

Constitutional Law replaces the need Constitutional Law replaces the need

for divine legitimacyfor divine legitimacyMoses with the 10 Commandments

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The Social Origins of LawThe Social Origins of Law

SOCIETYSOCIETY

ConflictsConflicts Conscious Conscious

desiresdesires

CommonCommon

LawLawLegislation

STATESTATE

LAWLAW

enforces makes

Public Private

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Codification of LawCodification of LawThe Constitution of the Roman Republic The Constitution of the Roman Republic Mos MaiorumMos Maiorum was a was a

body of customs perpetuated oraly in the body of customs perpetuated oraly in the ForumForum

Complex political structures require a universal Complex political structures require a universal

understanding of their legitimacy.understanding of their legitimacy.

Empire Empire –– extension of political control beyond cultural extension of political control beyond cultural

boundaries boundaries –– consolidation of powerconsolidation of power

Writing gives a permanent or semiWriting gives a permanent or semi--permanent quality to permanent quality to

Law Law –– it reinforces memory and proof.it reinforces memory and proof.

Justinian I collected and standardised Justinian I collected and standardised

centuries of Roman Law in the centuries of Roman Law in the CorpusCorpus

juris civilisjuris civilis..Justinian I – Codified Civil Law in the Western Roman Empire 529-534 AD

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Canon Law and ScriptureCanon Law and Scripture

�� Collection of texts (Canons) left by the Apostles after Collection of texts (Canons) left by the Apostles after the Council of Jerusalem (50 AD) including:the Council of Jerusalem (50 AD) including:

�� Acts of the Apostles which separated Christians (gentiles) from Acts of the Apostles which separated Christians (gentiles) from Jewish Law (on circumcision and food) and organised:Jewish Law (on circumcision and food) and organised:

�� Office and duties of bishopsOffice and duties of bishops

�� The qualifications and conduct of the ClergyThe qualifications and conduct of the Clergy

�� The religious life of ChristiansThe religious life of Christians

�� External administration (excomunication, synods, relations with External administration (excomunication, synods, relations with paganspagans and Jews)and Jews)

�� The SacramentsThe Sacraments

�� Gospels Gospels –– recount the lives of the Apostlesrecount the lives of the Apostles

�� 367367--419: Synod of Hippo, Councils of Carthage 419: Synod of Hippo, Councils of Carthage ––creating the works included in the New Testament. creating the works included in the New Testament. St. Augustine presided over the later councils and St. Augustine presided over the later councils and considered the Canon considered the Canon closedclosed

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Motivating Forces in Western Legal Motivating Forces in Western Legal TraditionTradition

533 533 –– 554 Justinian re554 Justinian re--conquered the Ostragoth and conquered the Ostragoth and

Vandal KingdomsVandal Kingdoms

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Law vs. Right Law vs. Right

�� Analysis of codified law became the principal subject of Analysis of codified law became the principal subject of

medieval universities medieval universities –– Bologna formed in 1088 around a group Bologna formed in 1088 around a group

of masters in grammar, rhetoric and logic began teaching points of masters in grammar, rhetoric and logic began teaching points

of the of the Corpus juris civilisCorpus juris civilis

�� 1010°° -- 1818°° centuries centuries –– codified law is legitimated by divine codified law is legitimated by divine

right of kings = bureaucratic centralisation of princely right of kings = bureaucratic centralisation of princely

powerpower

�� English Civil war contrasts this.English Civil war contrasts this.

Thomas Hobbes (1588Thomas Hobbes (1588--1679) 1679) Leviathan, De Cive, law is rational. Leviathan, De Cive, law is rational.

Social contract Social contract –– legitimating factor in the English Civil Warlegitimating factor in the English Civil War

John Locke (1632John Locke (1632--1704) 1704) –– Two Treatises on GovernmentTwo Treatises on Government, , government must have the consent of the governedgovernment must have the consent of the governed

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Modern European Civil CodesModern European Civil Codes

�� NapoleonNapoleon’’s conquest of Europe established this tradition in s conquest of Europe established this tradition in

modern terms modern terms –– The Napoleonic CodeThe Napoleonic Code (March 21(March 21°° 18041804

�� The The Code Code is based on Frenchis based on French

Revolution principles and aimed atRevolution principles and aimed at

rationalising old aristocratic law =rationalising old aristocratic law =

panpan--regional applicationregional application

�� Applies the Declaration of the RightsApplies the Declaration of the Rights

of Man (1789) to subjectsof Man (1789) to subjects

but did not apply to the Emperorbut did not apply to the Emperor

(self(self--crowned Dec. 2 1804)crowned Dec. 2 1804)

Napoleon’s Empire: France in dark blue and sattelite states in light blue

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�� Problem Problem –– how to create law for a fragmented group of how to create law for a fragmented group of

independent regionsindependent regions

�� The Napoleonic Civil Code offered a tradition and formula The Napoleonic Civil Code offered a tradition and formula

for superfor super--regional administration regional administration –– allowing for the unifying allowing for the unifying

presence of a king (house of Savoy)presence of a king (house of Savoy)

�� The 1948 Constitution draws on Civil Code tradition. The 1948 Constitution draws on Civil Code tradition.

Therefore Therefore –– it creates rules through legislation that judges it creates rules through legislation that judges

must applymust apply

ButBut

It also reflected Christian ideals (DCs) and Communist It also reflected Christian ideals (DCs) and Communist

Socialist ideals (PCI) and contains a Bill of Rights Socialist ideals (PCI) and contains a Bill of Rights –– based based

on natural lawon natural law

The Modern Italian Legal SystemThe Modern Italian Legal System

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Roman Law, Ecclesiastical Law, Roman Law, Ecclesiastical Law, Common LawCommon Law

�� Today: RomanoToday: Romano--Germanic countries base the Germanic countries base the

application of justice on the disposition of existing application of justice on the disposition of existing

law.law.

�� Question: the formalisation of tradition.Question: the formalisation of tradition.

Western Europe and North American legal and Western Europe and North American legal and

legislative systems are based on Roman, legislative systems are based on Roman,

Ecclesiastical, and Common law systems.Ecclesiastical, and Common law systems.

These systems represent traditions in themselves.These systems represent traditions in themselves.

�� Roman law and Ecclesiastical Law share a traditionRoman law and Ecclesiastical Law share a tradition

�� British Common Law diverges from that traditionBritish Common Law diverges from that tradition

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The Law and State FormationThe Law and State Formation

�� TodayToday’’s legal and legislative systems have been s legal and legislative systems have been formed over timeformed over time

�� Western Europe: Application of the Civil Code Western Europe: Application of the Civil Code (adaptation of Roman and Ecclesiastical legal (adaptation of Roman and Ecclesiastical legal tradition)tradition)

�� Britain, English speaking British Colonies, USA Britain, English speaking British Colonies, USA ––Common law tradition based on historical Common law tradition based on historical compromises between ruler and subjects, since compromises between ruler and subjects, since 1215 also affecting 1215 also affecting legislationlegislation as well as as well as justicejustice. .

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The Law and State FormationThe Law and State Formation

What is a state?What is a state?

How have they been formed?How have they been formed?

States are formed by when the social accord is legitimately States are formed by when the social accord is legitimately

applied in a territory or region and is recognised by other applied in a territory or region and is recognised by other

combinations of social accord/territorycombinations of social accord/territory

How to legitimate the application of the social accord?How to legitimate the application of the social accord?

�� force of armsforce of arms –– armies, garrisons, fortresses = high armies, garrisons, fortresses = high

competition (war, civil war)competition (war, civil war)

�� force of customforce of custom –– traditional affinities traditional affinities –– low competitionlow competition

�� force of lawforce of law –– communicationscommunications--based appeal to internal and based appeal to internal and

external consensus requiring demonstrable experience = external consensus requiring demonstrable experience =

moderate or possible competitionmoderate or possible competition

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The Law and State FormationThe Law and State Formation

States are, and create, instruments designed to guarantee States are, and create, instruments designed to guarantee

consenusconsenus

AuthorityAuthority ObligationObligation LegitimacyLegitimacy

OligarchyOligarchy

MonarchyMonarchy

ParliamentParliament

RepublicanismRepublicanism

DictatorshipDictatorship

CommunisimCommunisim

How do these systems How do these systems

create consensus?create consensus?

Traditional authorityTraditional authority

Legal authorityLegal authority

Charismatic authorityCharismatic authority

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The Formation of British LawThe Formation of British Law1066 = disaggregate Saxon territorial tribes + 1066 = disaggregate Saxon territorial tribes +

DanelawDanelaw

1066 1066 --1215 = Norman/Angevin rulers at war 1215 = Norman/Angevin rulers at war –– interested in interested in ensuring tax authority ensuring tax authority –– Domesday book (10,000 Normans Domesday book (10,000 Normans governing 3,000,000 Britonsgoverning 3,000,000 Britons

1166 Henry II uses royal 1166 Henry II uses royal writwrit to reign in control of his Barons to reign in control of his Barons –– writs are royal orders to come to a decision or pass the writs are royal orders to come to a decision or pass the case to the Royal Courtscase to the Royal Courts

1179 Magna Assisa 1179 Magna Assisa –– instead of trial by ordeal (duel) the instead of trial by ordeal (duel) the defendant and plaintiff could plea before judge and jurydefendant and plaintiff could plea before judge and jury

1215 1215 –– Magna Carta = Barons impose council on King John IMagna Carta = Barons impose council on King John I

This is intermittently applied in the following 400 years, but This is intermittently applied in the following 400 years, but becomes popular concept under the Stuartsbecomes popular concept under the Stuarts

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The Formation of British LawThe Formation of British LawRoyal Courts: developed in early XII centuryRoyal Courts: developed in early XII century

Exchequer = Exchequer = revision of accounts (from demesne to debt)revision of accounts (from demesne to debt)

Court of Common Pleas = Court of Common Pleas = 1178 1178 –– 1215 at Westminster, high caseload 1215 at Westminster, high caseload producing more Royal justiceproducing more Royal justice

Court of KingCourt of King’’s Bench = s Bench = decided on cases not covered in other decided on cases not covered in other courts and particulalry upsetting the Kingcourts and particulalry upsetting the King’’s Peace (public order)s Peace (public order)

The Stuarts: Catholic, Absolutist tendenciesThe Stuarts: Catholic, Absolutist tendencies

James I was Religiously moderate (married a Protestant)James I was Religiously moderate (married a Protestant)

Charles I was less so Charles I was less so –– and always at odds with Parliament, and always at odds with Parliament, dissolving it 1629dissolving it 1629--16401640

16421642--1651 = Puritan faction in parliament arms, defeats 1651 = Puritan faction in parliament arms, defeats royalist supporters, executes Charles I and rules until royalist supporters, executes Charles I and rules until restoration of the Stuarts in 1661 under Charles II restoration of the Stuarts in 1661 under Charles II ––creating the constitutional monarchy systemcreating the constitutional monarchy system

1688 1688 –– the Glorious Revolution. William of Orange becomes the Glorious Revolution. William of Orange becomes king king –– formalises the English Bill of Rights in 1689formalises the English Bill of Rights in 1689

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The Formation of British LawThe Formation of British Law�� The basic The basic tenetstenets of the Bill of Rights 1689 are:of the Bill of Rights 1689 are:

Englishmen, as embodied by Parliament, possessed certain Englishmen, as embodied by Parliament, possessed certain immutable civil and political rights. These included:immutable civil and political rights. These included:

•• freedom from royal interference with the law (the Sovereign freedom from royal interference with the law (the Sovereign was forbidden to establish his own courts or to act as a judge was forbidden to establish his own courts or to act as a judge himself) himself)

•• freedom from freedom from taxationtaxation by royal prerogative, without by royal prerogative, without agreement by Parliament agreement by Parliament

•• freedom to petition the Monarch freedom to petition the Monarch

•• freedom from a peacefreedom from a peace--time time standing armystanding army, without agreement , without agreement by Parliament by Parliament

•• freedom [for freedom [for ProtestantsProtestants] to have arms for defence, as allowed ] to have arms for defence, as allowed by law by law

•• freedom to elect members of Parliament without interference freedom to elect members of Parliament without interference from the Sovereign from the Sovereign

•• the freedom of speech in Parliament, in that proceedings in the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any Parliament were not to be questioned in the courts or in any body outside Parliament itself (the basis of modern body outside Parliament itself (the basis of modern parliamentary privilegeparliamentary privilege) )

•• freedom from cruel and unusual punishments, and excessive freedom from cruel and unusual punishments, and excessive bail bail

•• freedom from fines and forfeitures without trial freedom from fines and forfeitures without trial

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The Formation of British LawThe Formation of British Law

Certain acts of Certain acts of James IIJames II were specifically named and declared were specifically named and declared illegal on this basis. He believed in Absolutist monarchy.illegal on this basis. He believed in Absolutist monarchy.

The flight of James from England in the wake of the Glorious The flight of James from England in the wake of the Glorious Revolution amounted to Revolution amounted to abdicationabdication of the throne in 1688.of the throne in 1688.

He attempted to retake England by invading Ireland, but was He attempted to retake England by invading Ireland, but was roundly defeated by at the battle of the Boyneroundly defeated by at the battle of the Boyne

Roman CatholicsRoman Catholics could not be king or queen of England since could not be king or queen of England since "it hath been found by experience that it is inconsistent "it hath been found by experience that it is inconsistent with the safety and welfare of this protestant kingdom to with the safety and welfare of this protestant kingdom to be governed by a papist prince". The Sovereign was be governed by a papist prince". The Sovereign was required to swear a required to swear a coronation oathcoronation oath to maintain the to maintain the Protestant religionProtestant religion. .

William and Mary were the successors of James. William and Mary were the successors of James.

Succession should pass to the heirs of Mary, then to Mary's Succession should pass to the heirs of Mary, then to Mary's sister sister Princess Anne of DenmarkPrincess Anne of Denmark and her heirs, then to any and her heirs, then to any heirs of William by a later marriage. heirs of William by a later marriage.

The Sovereign was required to summon The Sovereign was required to summon Parliament Parliament frequentlyfrequently

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The Formation of British LawThe Formation of British Law

British law focuses on British law focuses on procedureprocedure

Common LawCommon Law (hundreds courts, JPs and law of the land (hundreds courts, JPs and law of the land through the appellate court system)through the appellate court system)

Equity Equity (remedies or corrections to Common Law where (remedies or corrections to Common Law where common law is too rigidly procedural. Perogative of the common law is too rigidly procedural. Perogative of the Chancellor of the Exchequer)Chancellor of the Exchequer)

Equity = application of justice (moral law) when the Equity = application of justice (moral law) when the Common Law is not able to reach an adequate Common Law is not able to reach an adequate decision regarding the trial. Equity court may not decision regarding the trial. Equity court may not innovate or create law. It derives from Canon Lawinnovate or create law. It derives from Canon Law

Common Law provides remedies Common Law provides remedies as of rightas of right(guaranteed by statute or precedent. Equity court (guaranteed by statute or precedent. Equity court decisions are discretionary decisions are discretionary –– the right the right

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EquityEquity

Equity maxims:Equity maxims:

““He who comes to Equity must come with He who comes to Equity must come with clean handsclean hands””

the claimant must be beyond reproachthe claimant must be beyond reproach

““Delay defeats EquityDelay defeats Equity””

claimants must not wait too long before making a claimants must not wait too long before making a claimclaim

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The Formation of British LawThe Formation of British Law

Equity and Common Law balance the KingEquity and Common Law balance the King’’s justice s justice –– by the by the end of the XVIII century end of the XVIII century –– equity law had become a true equity law had become a true body of lawbody of law

Common Law by the XVIII century looks increasingly to Common Law by the XVIII century looks increasingly to precedent decisions to inform its justice. Year Books dated precedent decisions to inform its justice. Year Books dated back to approx. 1290.back to approx. 1290.

16001600--1615 Edward Coke compiles his 1615 Edward Coke compiles his ““ReportsReports”” ––constituting a model for collection, explication, and use of constituting a model for collection, explication, and use of court decisions.court decisions.

Parliament balances the KingParliament balances the King’’s public policy by controlling the s public policy by controlling the purse and guaranteeing the Common Law against absolutist purse and guaranteeing the Common Law against absolutist centralisationcentralisation

Constitutional Monarchy after 1688 avoided absolutism in Constitutional Monarchy after 1688 avoided absolutism in BritainBritain

By the beginning of the XIX century, precedent tradition was By the beginning of the XIX century, precedent tradition was formalised as the formalised as the ““rule of precedentrule of precedent””

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The Formation of British LawThe Formation of British Law

The Judicature Acts 1873The Judicature Acts 1873--18751875�� In terms of procedure, it had become possible and In terms of procedure, it had become possible and

desireable to register two desireable to register two ““actionsactions”” –– one in Common Law one in Common Law

court and one at Chancerycourt and one at Chancery

�� After 1875 After 1875 –– there is no real division between equity and there is no real division between equity and

common law common law –– but the question for the High Courts is to but the question for the High Courts is to

decide which procedure best acts in competencedecide which procedure best acts in competence

�� The Acts suppressed all previous High Courts, creating the The Acts suppressed all previous High Courts, creating the

Supreme Court of JudicatureSupreme Court of Judicature

�� Equity court today Equity court today –– tends to preside over cases tends to preside over cases

involving written procedure:involving written procedure:�� Real property, trusts, companies, bankruptcy, Real property, trusts, companies, bankruptcy,

interpretation of hereditary right and willsinterpretation of hereditary right and wills

�� Common Law court today Common Law court today –– tends to preside over tends to preside over

cases involving oral procedure = judge and jurycases involving oral procedure = judge and jury�� Penal law, contract law and civil responsibilityPenal law, contract law and civil responsibility

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Open and Closed Systems of LawOpen and Closed Systems of Law

�� RomanoRomano--Germanic tradition is a Germanic tradition is a ““closed systemclosed system”” = = each type of problem, at least in theory, can and each type of problem, at least in theory, can and must be resolved through must be resolved through ““interpretationinterpretation”” of existing of existing lawslaws

�� The British or Common Law tradition is an The British or Common Law tradition is an ““open open systemsystem”” = it possesses a = it possesses a ““methodmethod”” that allows the that allows the resolution of any type of problem without necessarily resolution of any type of problem without necessarily possessing existing law to apply indifferently in all possessing existing law to apply indifferently in all casescases

�� The British judge is responsible for adjudicating the The British judge is responsible for adjudicating the case in front of him or her case in front of him or her –– not for creating rules not for creating rules that may be applied beyond that controversy. The that may be applied beyond that controversy. The judge is obliged to respect prior judge is obliged to respect prior decisionsdecisions until until overturned by the Supreme Court.overturned by the Supreme Court.

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The Rule of PrecedentThe Rule of Precedent

Since medieval times legal arguments in important cases were Since medieval times legal arguments in important cases were recorded and subsequently used by judges to provide recorded and subsequently used by judges to provide authority for specific rules of law.authority for specific rules of law.

1833 1833 –– the principle of the principle of binding precedentbinding precedent is articulated in the is articulated in the case Mirehouse v Rennelcase Mirehouse v Rennel

Application of precedent depends on the explication of the Application of precedent depends on the explication of the ratio decidendiratio decidendi –– and only if eminating from higher courts and only if eminating from higher courts and from the same court in a previous case.and from the same court in a previous case.

Binding precedent is based on:Binding precedent is based on:

the hierarchy of courtsthe hierarchy of courts

principles of identificationprinciples of identification

a system of law reportinga system of law reporting

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The Hierarchy of PrecedentsThe Hierarchy of Precedents

European Court of JusticeEuropean Court of JusticeArt. 177, Treaty of Rome 1957Art. 177, Treaty of Rome 1957 House of LordsHouse of Lords

Appeals Appeals –– binding lower binding lower

courts but not itselfcourts but not itself

Court of AppealCourt of AppealAppeals Appeals --Binding lower Binding lower

courts AND itselfcourts AND itself

High CourtHigh CourtDifferent disputes + appeals, new casesDifferent disputes + appeals, new cases

==

Family, Chancery, QueenFamily, Chancery, Queen’’s Benchs BenchBinding lower courts but not itselfBinding lower courts but not itself

County CourtCounty CourtCivil Civil –– binding no onebinding no one

Crown CourtCrown CourtCriminal Criminal –– binding no onebinding no one

MagistrateMagistrate’’s Courts CourtCiminal, licensing Ciminal, licensing –– binding no onebinding no one

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Principles Identifying Binding Principles Identifying Binding PrecedentPrecedent

Higher court decisions are binding on lower courts.Higher court decisions are binding on lower courts.

BUTBUT

Only some parts of the judgement are relevant.Only some parts of the judgement are relevant.

Judgements have two parts: Judgements have two parts: Ratio DecidendiRatio Decidendi

Obiter DictaObiter Dicta

Ratio Decidendi Ratio Decidendi = material reason for the judgement= material reason for the judgement

(these are binding)(these are binding)

Obiter DictaObiter Dicta = statements in the judgement that are = statements in the judgement that are NOT essential to the decisionNOT essential to the decision

(these may MAY be binding if applied in superior courts)(these may MAY be binding if applied in superior courts)

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JudgmentJudgment

�� Judgments contain:Judgments contain:

�� A statement of the material facts of the case A statement of the material facts of the case

(questions of fact)(questions of fact)

�� A statement of the legal issues and principles applied A statement of the legal issues and principles applied

to the decision (questions of law to the decision (questions of law -- RatioRatio))

�� A discussion of the legal principles reaised in A discussion of the legal principles reaised in

argument but not material to the decision (argument but not material to the decision (ObiterObiter))

�� The final decision disposing of the caseThe final decision disposing of the case

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Law ReportingLaw Reporting

The system of law reporting in Britain is fundamental to The system of law reporting in Britain is fundamental to the documentation of legal precedent.the documentation of legal precedent.

Law reporting falls into three periods:Law reporting falls into three periods:

1.1. the year books published between 1270 the year books published between 1270 –– 15301530

2.2. Private reporters such as E. Coke, Dyer, etc., 1535 Private reporters such as E. Coke, Dyer, etc., 1535 ––18651865

3.3. The modern semiThe modern semi--official report series established by the official report series established by the Council on Law Reporting in 1865 Council on Law Reporting in 1865 –– becoming the becoming the Incorporated Council of Law Reporting for England and Incorporated Council of Law Reporting for England and Wales in 1870.Wales in 1870.

There are 4 series:There are 4 series: Appeal CasesAppeal Cases

Chancery DivisionChancery Division

QueenQueen’’s Benchs Bench

Family DivisionFamily Division

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Cases Referred to by the CourtsCases Referred to by the CourtsJudges use specific terms to refer to case judgments, often Judges use specific terms to refer to case judgments, often

indicating the effect of those judgments on the case before indicating the effect of those judgments on the case before them:them:

OverrulingOverruling -- higher court decides lower court decision higher court decides lower court decision wrongwrong

ReversingReversing –– higher court reaches an opposite decisionhigher court reaches an opposite decision

DisapprovingDisapproving –– higher court doubts lower court higher court doubts lower court decisiondecision

DistinguishingDistinguishing –– lower court not bound as cases are lower court not bound as cases are differentdifferent

Departing Departing (from) (from) –– court not bound as prior decision court not bound as prior decision per incuriamper incuriam

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Cases Referred to by the CourtsCases Referred to by the Courts

Affirmed Affirmed –– higher court confirms decision of a lower higher court confirms decision of a lower

court in a casecourt in a case

AppliedApplied –– court considers itself bound by an earlier court considers itself bound by an earlier

decisiondecision

ApprovedApproved –– higher court states lower court decsion was higher court states lower court decsion was

correct in a different casecorrect in a different case

ConsideredConsidered –– court discusses a case (part. of = status court discusses a case (part. of = status

in hierarchy) but reaches no substantial conclusion in hierarchy) but reaches no substantial conclusion

as to applicationas to application

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Islamic Legal TraditionIslamic Legal Tradition

Founding document Founding document –– the the

revelations of the prophet revelations of the prophet

Mohammed Mohammed (Mecca 570 (Mecca 570 –– 632 AD)632 AD)

written by him in The Quwritten by him in The Qu’’ranran

–– expressing the word of Godexpressing the word of God

(orthodox) His teachings are(orthodox) His teachings are

universal and written.universal and written.

MohammedMohammed’’s successors are called Caliphs (s successors are called Caliphs (KalifaKalifa) but they ) but they

are not considered prophetsare not considered prophets

Mohammed had made many alliances with tribal chiefs. When Mohammed had made many alliances with tribal chiefs. When

he died he died –– these threatened to dissolve as the chiefs these threatened to dissolve as the chiefs

disputed the concentration of power in Medina.disputed the concentration of power in Medina.

After the death of Ali in 661, the decendents of Umayya (the After the death of Ali in 661, the decendents of Umayya (the

Umayids) came to power and moved the capital to Umayids) came to power and moved the capital to

DamascusDamascus

Expansion under the Prophet Muhammad, 622-632 Expansion during the Patriarchal Caliphate, 632-661 Expansion during the Umayyad Caliphate, 661-750

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Islamic Legal TraditionIslamic Legal Tradition

Successors to the first 4 Caliphs split into two groups:Successors to the first 4 Caliphs split into two groups:

supporters of Ali (shisupporters of Ali (shi’’at at ‘‘Ali) Ali) –– Caliph of Kufa and husband to Caliph of Kufa and husband to MohammedMohammed’’s daughter Fatima s daughter Fatima –– the Shithe Shi’’is moved moved is moved moved east into Iraq then Iran (680east into Iraq then Iran (680--740 AD) and resisted the 740 AD) and resisted the centralisation of Umayyad authority.centralisation of Umayyad authority.

Supporters of his uncle Abbas (becoming Abbasids) Supporters of his uncle Abbas (becoming Abbasids) –– who who attempted to consolidate a single interpretation of the faith attempted to consolidate a single interpretation of the faith by the power of the ruler. Beginning in Kufa by the power of the ruler. Beginning in Kufa –– they they defeated the Umayyads (750 AD) and centred their power defeated the Umayyads (750 AD) and centred their power in the new city of Baghdad.in the new city of Baghdad.

Abbasid legitimacy was founded in itAbbasid legitimacy was founded in it’’s adherence to the s adherence to the QurQur’’an and the right rules of conduct established by the an and the right rules of conduct established by the ProphetProphet’’s behaviour s behaviour –– the the sunnasunna

Religious specialists, therefore, were elevated to the post of Religious specialists, therefore, were elevated to the post of quadiquadi (judge) (judge) –– to decide conflicts based on emerging to decide conflicts based on emerging Islamic lawIslamic law

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Islamic Legal TraditionIslamic Legal Tradition

The belief in unity inclusive of differences in legal opinion anThe belief in unity inclusive of differences in legal opinion and d the importance of both the Qurthe importance of both the Qur’’an and the practice of the an and the practice of the Prophet created a mode of thought known as Prophet created a mode of thought known as SunnismSunnism..

Different areas supported different religious community Different areas supported different religious community leaders leaders –– the the imamsimams –– who were people deemed worthy who were people deemed worthy under Qurunder Qur’’an scripture and the body of practice. The Caliph an scripture and the body of practice. The Caliph was an was an imam imam –– but others were recognised. Particularly but others were recognised. Particularly important in Shiimportant in Shi’’a communities that did not recognise the a communities that did not recognise the central power of the Abbasids.central power of the Abbasids.

Extension of Islam promoted linguistic adoption of Arabic Extension of Islam promoted linguistic adoption of Arabic among local populations among local populations –– particularly through poetry and particularly through poetry and the art of caligraphy.the art of caligraphy.

By the 9By the 9°° or 10or 10°° centuries AD (3centuries AD (3°° and 4and 4°° in Islamic calendars) in Islamic calendars) the Muslim world had taken shape the Muslim world had taken shape –– adopting adopting recongnisable features recongnisable features –– the mosque, surrounded by the mosque, surrounded by hostels and the seat of the Qadihostels and the seat of the Qadi

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Islamic Legal TraditionIslamic Legal Tradition

The ShariThe Shari’’a: the nature of human authority.a: the nature of human authority.

In the midIn the mid--88°° century century –– questions arose around the nature of questions arose around the nature of

the Prophetthe Prophet’’s teaching.s teaching.

What is the QurWhat is the Qur’’an?an?

How does God interact with mankind?How does God interact with mankind?

Problem Problem –– the Qurthe Qur’’an states that God is allan states that God is all--powerful and allpowerful and all--

knowing, but also that man was responsible for his own knowing, but also that man was responsible for his own

actions and would be judged by God.actions and would be judged by God.

How is it that God permits evil, and then judges menHow is it that God permits evil, and then judges men’’s evil?s evil?

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Islamic Legal TraditionIslamic Legal TraditionBasic principles = The Pillars of IslamBasic principles = The Pillars of Islam

The The MuMu’’tazilistazilis: The Qur: The Qur’’an is not only a text, but also a an is not only a text, but also a methodology of approach. Truth may be found by reason methodology of approach. Truth may be found by reason based on what is given in the Qurbased on what is given in the Qur’’anan

The The SunnisSunnis: the Qur: the Qur’’an is divine and it and the practice of the an is divine and it and the practice of the Prophet are the only basis for finding truth. The QurProphet are the only basis for finding truth. The Qur’’an is an is the only basis for interpreting the Prophetthe only basis for interpreting the Prophet’’s actions.s actions.

995 AD. Al995 AD. Al--AshAsh’’ari ari –– the Qurthe Qur’’an must be interpreted literally, an must be interpreted literally, but can be partly justified by reason.but can be partly justified by reason.

Problem: from the beginning Problem: from the beginning –– the Islam had both spiritual the Islam had both spiritual and temporal duties.and temporal duties.

Umayyads Umayyads –– Caliphs and QadiCaliphs and Qadi’’s dispensed justice and s dispensed justice and administration while Muslim thinkers tried to unify human administration while Muslim thinkers tried to unify human acts under the judgement of their religion acts under the judgement of their religion –– creating a creating a body of thought called the body of thought called the hadithshadiths on how the Prophet on how the Prophet behavedbehaved

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Islamic Legal TraditionIslamic Legal Tradition

Abbasids Abbasids (mid(mid--eighth century): the centralised, bureaucratic eighth century): the centralised, bureaucratic state necessitated agreement on ways in which disputes state necessitated agreement on ways in which disputes should be settled.should be settled.

AlAl--ShafiShafi’’i i (767 (767 –– 820 AD) stated that the Qur820 AD) stated that the Qur’’an was the an was the literal word of God expressing commandments on:literal word of God expressing commandments on:

PrayerPrayer

AlmsAlms

FastingFasting

PilgrimagePilgrimage

No adulteryNo adultery

No wineNo wine

No porkNo pork BUTBUT

–– the the HadithsHadiths were equally important and informed unclear were equally important and informed unclear areas in the Qurareas in the Qur’’an. Neither could exclude the other and an. Neither could exclude the other and both were infallibleboth were infallible

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ShariShari’’a Lawa Law

ShafiShafi’’i: Ordinary Muslims must defer judgement to people i: Ordinary Muslims must defer judgement to people learned in religion to use their reason to explain what was learned in religion to use their reason to explain what was contained in the Qurcontained in the Qur’’an and Hadiths an and Hadiths –– within strict limits.within strict limits.

Muslim scholars should procede by analogy (qiyas), finding Muslim scholars should procede by analogy (qiyas), finding some element in the case that was similar to an element some element in the case that was similar to an element found in a previous case.found in a previous case.

This disciplined exercise was called This disciplined exercise was called ijtihad ijtihad -- and justifications and justifications could be found in the could be found in the hadithhadith..

When general agreement was found as a result of this reason, When general agreement was found as a result of this reason, the consensus (the consensus (ijmaijma) held the status of unquestionable ) held the status of unquestionable truth.truth.

ShafiShafi’’i held that this perpetuated general truth found in the i held that this perpetuated general truth found in the sunna sunna –– his successors held that the only valid his successors held that the only valid ijmaijma were were those of the scholars.those of the scholars.

All interpretation (so all Law) was to be performed in Arabic.All interpretation (so all Law) was to be performed in Arabic.

ShiShi’’is held that consensus was only valid if the is held that consensus was only valid if the ImamImam was was included.included.