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
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
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.
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
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)
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)
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
The Social Origins of LawThe Social Origins of Law
SOCIETYSOCIETY
ConflictsConflicts Conscious Conscious
desiresdesires
CommonCommon
LawLawLegislation
STATESTATE
LAWLAW
enforces makes
Public Private
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
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
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
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
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
�� 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
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
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. .
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
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
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
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
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
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
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
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
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””
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
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.
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
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
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)
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
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
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
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
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
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
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
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?
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
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
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.
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