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LEGAL SYSTEM

THE SYSTEM OF DUALITY (dychotomic divisions)

COMMON LAW AND CIVIL LAW


1) The term "CIVIL LAW" refers to jurisdictions which have adopted the European continental system of law - the system based on ancient Roman civil law (e.g. the Roman Law of the Twelve Tables or the Justinian's Corpus Juris Civilis) but they owe much to the Germanic legal tradition as well 2) The term "COMMON LAW" refers to the legal systems which have adopted the historic English legal system common law = judge-made law = case law -> ANGLO-SAXON LAW civil law -> statute or statutory law -> THE EUROPEAN CONTINENTAL LAW

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

COMMON LAW AND STATUTORY LAW


1-Statute law - refers to law that has been created by Parliament in the form of legislation (although in civil statutory law systems courts also play an important role in creating, operating and interpreting the law in its practical context); 2-The common law - refers to the substantive law and procedural rules created by the judiciary through the decision in the cases they hear (case law; judge-made law) *Civil Statutory Law --> prevalent in the Continental Europe- the countries of the North (West) *Common Law - characteristic for the Anglo-Saxon world

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

THE STATUTORY LAW SYSTEM


-> Law-making - is a unilateral, governing, conventional act of public authorities (state and self-government authorities) entitled to establish the law -> Result of law-making - a binding legal text and introduction of new rules of conduct into the particular legal system

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

IN THE SYSTEM OF STATUTORY LAW


1 - A legislator enacts the acts and develops universal (general and abstract) legal regulations which contain general legal norms; 2 - The legal regulations which are the product of the law - making process are targeted at specific addressees of the law (objects of the law); 3 - Legal regulations contain a definition of the obligatory methods of conduct (i.e. what addressees can/should or cannot do to stay within the law)

CUSTOMARY AND CASE LAW SYSTEMS


Customary law - is the fundamental type of unwritten law which is derived from customs. CUSTOMS -> repeated and socially admitted ways of conduct that lead to the creation of CUSTOMARY LAW- conditions: * when it is proved by its application -> application of customs because people believe these customs are (should be) applicable and binding + * consent by those who adopt customs

=> This leads to the forming of customary law

HOW CUSTOMARY LAW IS CREATED?


-> There is A CUSTOM= a socially admitted/accepted way of behaving -> By the consent, acceptance and approval of the society + its belief that it should be binding -> A CUSTOMARY NORM is created -> people behave in the agreed way--> repeated behaviour through a longer period of time; -> A state authority (or the states) makes a decision on the basis of the customary norm => this governing and conventional act is the acknowledgement of a customary norm--> AN UNWRITTEN STANDARD (CUSTOMARY NORM) BECOMES THE LAW WHEN: 1-certain established conduct (allowed or prohibited behaviour) is defined reasonably precisely we know whom it concerns (which individuals or groups), in what circumstances it is applied, etc; 2-there exists common conviction that that customary norm is binding in its nature (everyone wants this norm to be binding and believes so); 3-a state (group of states; EU members; institutions) include this norm in the system of binding law (domestic, EU, public international law) by expressing its consent and will to have this norm as binding in the legal system; -> The customary norm is therefore incorporated into the system of applicable standards (legal norms)- if these norms are not obeyed, there are sanctions from authorities-> THE CUSTOMARY LAW is developed * CUSTOM -> CUSTOMARY NORM -> CUSTOMARY LAW

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

COMMON LAW SYSTEM


* The concept of case law - the law established by courts which apply customary law when settling disputes which arise before them in specific cases - is characteristic for: - Great Britain, Ireland, - the US (*except for Louisiana that is based on civil law tradition); - Puerto Rico; - Canada (*excluding Quebec); - India; - Australia; - New Zealand; - Nigeria; Kenya; - Malaysia; - Other former British Commonwealth countries that adopted common law tradition through colonisation

COMMON LAW AND EQUITY


-> a particular division within the English legal system of common law -> Common law literally means "the universal" law (originally the law of the common people of England) standardised and unified throughout the state; -> Traditionally, the circuit of judges travelling round the country establishing the "King's peace", selecting the best local customs and making them the basis of the law of England (unification of the fragmented state and its differing customs); -> Prior to the Norman Conquest of England in 1066 - no unitary, national legal system

-> 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

The common law system


- a court (a judge or a panel of judges) issues a specific and individual decision on a particular case by reference to another similar case previously decided upon by a court - another case constitutes grounds for the case at stake; - the very first judicial decision to which the decisions are referred to is a precedent-> The so-called "cases of first impression", i.e. when cases are submitted to the court for the first time and other similar cases are not found in the legal system - the court delivering resolving the present case and its decision establishes a new norm on the basis of its own belief and conscience. The court must take all circumstances into consideration to justify its decision : the social changes - principles and social values, sense of equity and social justice, good practice; protection of social order; technology development, etc

* 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

PRIVATE LAW AND PUBLIC LAW


The oldest division of law in the European tradition originating in ancient Rome PRIVATE LAW (1) law including principles regulating autonomous and free activity of society in the social and economic areas of life; (2) parties are equal to each other and before the law - the law regulates their relationships (only serves as a support- establishment, modification or termination of them) and ensures equal legal protection of the private activity of the subjects of the law -> the civil - law method of regulation -legal position of the parties is equal neither can unilaterally and authoritatively impose its will on the other but the will of the parties helps in shaping/modifying their legal relations; (3) - private - law is based on relatively valid regulations (IUS DISPOSITIVI) - that only suggest a suitable conduct but does not impose or prohibit it; (4) The "self - service " principle - subjects of law are self-sufficient and state authorities are involved only on the initiative of the interested parties (e.g. when parties bring a lawsuit to a court); (5) The principle of IGNORANTIA IURIS NOCET = ignorance of the law harms- if subjects of law do not know regulations (their rights or obligations), they will bear the consequences (no exercising of rights or sanctions for failure to act, or for failure not to act) (6) Private law- examples: -civil substantive law (e.g. contract law; commercial law); -family law; -international private 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

CIVIL LAW AND 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)

SUBSTANTIVE LAW AND PROCEDURAL LAW


1). Substantive law - consists of norms regulating social relations which are addressed to all, describe who and in what circumstances should behave this or that way, and what happens if there is a lack of compliance with legal norms (what legal consequences are used); substantive law describes the rights and duties of the subjects of law Example: substantive civil/criminal law

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)

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