UNIT 2 COMMON LAW AND EQUITY

UNIT 2 – COMMON LAW AND EQUITY

A system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience

A statute, ordinance or regulation enacted by the legislative branch of a government “natural law”, which is not based on statute, but on common understanding of what is right and proper (based on morality, fairness, justice).

The history of law

2 100 B.C. the earliest lawbook was written for Ur-Nammu, king of Ur

18th century B.C. Hammurabi, king of Babylonia, enumerated laws of private conduct, business and legal precedent (an eye for an eye, unequal treatment of the rich and the poor, drowning as punishment for adultery by a wife..)

1,000 years later written law codes developed among the Greek city-states (Athens) and Israel

534 A.D. the Justinian Code – the codification of all classic law

ordered by the Roman Emperor Justinian, it became the law of the Roman Empire and most legal systems of European nations are based on it to this day

6th century Common law had it roots among Angles, Britons and Saxons

1,066 A.D. William the Conqueror combined the best of Anglo-Saxon law with Norman

law

Civil Law

The term civil law has two different meanings. It either means the system of law built up on Roman law and legal tradition and is in this meaning termed “continental law” (kontinentální právo), or it designates the branch of private law dealing with property and civil liability (občanské právo).

Civil law is a modern legal system based upon Roman law, as distinguished from common law. Civil law is based on written legal codes, common law is based on the precedents created by judicial decisions over time. The countries which follow civil law are the countries on the continent of Europe, the countries that were former colonies of such continental powers

(Latin American countries) and other countries that have adopted Western legal systems (Japan). It is also the foundation for the law of Quebec province and of Louisiana. Modern countries that do not adhere to civil law (Great Britain, the U.S.) were mostly colonized by England and apply the system of common law.

Roman Law

Roman Law is the legal system of ancient Rome. The development of Roman Law covers more than a thousand years from the law of the twelve tables (from 449 BC) to the

codification of Emperor Justinian I. Roman law as preserved in Justinian´s codes became the basis of legal practice in the Byzantine Empire and later in continental Western Europe. The first legal text the content of which is known to us in some detail is the law of the twelve tables. The first ten codes were

completed by the first Decemvirate in 450 B.C., the last two codes were completed in 449 B.C. by the second Decemvirate and the Law of the Twelve Tables was formally promulgated. The Twelve Tables were literally drawn up on twelve wooden tablets which were posted in the Forum Romanum so that all Romans could read and know them. It was not a law code in the modern sense. It did not provide a complete system of all applicable rules or give legal solutions for all possible cases. Rather, it contains a number of specific provisions designed to change the customary law already in existence at the time of the enactment. The twelve tables covered such branches as Civil procedure, Debt, Parents and children, Inheritance, Property, Real Property, Torts, Constitutional principles, Funeral

regulations, Marriage and Crimes. Islamic Law (the Sharia)

The Sharia contains the rules by which a Muslim society is organized and governed, and it provides the means to resolve conflicts among individuals and between the individual and the state. There are two textual sources of Islamic law:

1. the Qur´an which contains the rules by which the Muslim world is governed and forms the basis for relations between man and God, between individuals, whether Muslim or non-Muslim, as well between man and things which are part of creation.

2. the sunan (pl. of sunnah) which are precedents laid down by the Prophet through his sayings, acts and approvals. The sunnah is an inspiration from Allah but it is passed on us through the words and actions of the Prophet.

Common Law

The legal system in many countries, including Australia, Canada (except Quebec), Ghana, Hong Kong, India, Jamaica, Malaysia, New Zealand, Pakistan, Tanzania, the USA (except Lousiana), the Bahamas and Zambia, is based on common law.

The sources of Anglo-American law are primary, such as legislation, case or common law and equity, and secondary, e.g. customs or books of authority. All of them are sources of legal rules. A rule made in the course of deciding cases is called a rule of common law. It has as much force as a rule derived from statute. It excludes new rules made by judges when they interpret statutes. The term case law covers both kinds of new rules, i.e. rules resulting from judicial decisions and judicial interpretation of legislation.

The common law consists of the substantive law and procedural rules that are created by the judicial decisions made in the courts. Although legislation may override such decision, the legislation itself is subject to interpretation in the courts.

Essential to the common law is the hierarchy of the courts in all of the UK jurisdictions and the principle of binding precedent. In practice, this means that the decision of a higher court is binding on a lower court, that is, the decision must be followed, and in the course of a trial the judges must refer to existing precedents. They will also consider decisions made in a lower court, although they´re not bound to follow them. However, a rule set by a court of greater or equal status must be applied if it´s to the point (relevant to the case).

Judicial precedents derive their force from the doctrine of stare decisis (Lat. stand by the decided matter), i.e. that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction.

The English legal system is centralised through a court structure which is common to the whole country. English judges are independent of the government and the people appearing before them. This allows them to make impartial decisions. English judges have an important role in developing case law and stating the meaning of Acts of Parliament.

Not every judgement in every case is of equal importance. The weight which is given to them will depend upon two things. One is the level of the court in which the case was decided. In English law there is a principle of hierarchy of precedents. Judgements given by superior courts in the hierarchy are binding on inferior courts. Even if a previous case is said to be binding, only some parts of the judgements are important. Lawyers distinguish two parts of a judgement: the ratio decidendi, which means the reason for the decision and produces

precedent for judges to follow in the future, and the obiter dicta, which are “things said by the way” that have only persuasive authority and are not binding (e.g. what the judge thinks the law would be if the facts were different).

Another component of primary sources of Anglo-American law is the law of equity. Equity comprises principles of justice and fairness and the view that no wrong should be without an adequate remedy. In the Middle Ages the courts of common law failed to give redress in certain types of cases where redress was needed. The disappointed litigants petitioned the King, who was the “fountain of justice” for extraordinary relief. The King, through his Chancellor, set up a special court, the Court of Chancery, to deal with these petitions. The rules applied by the Court of Chancery hardened into law, the law of equity, and became a regular part of the law in England. The most important branch of equity is the law of trusts, but equitable remedies such as specific performance and injunction are also much used. This system went on until 1875, when as a result of Judicature Act 1873 the old courts of common law and the Court of Chancery were abolished, and in their place was established a single Supreme Court of Judicature, each branch of which had full power to administer both law and equity. It was enacted that in case of variance between the rules of equity and the rules of common law, the rules of equity should prevail.

Among the basic principles of equity belong:

o equity will not suffer a wrong to be without remedy o equity follows the law

o he who comes to equity must come with clean hands o equitable remedies are discretionary

The court system in England

VOCABULARY

Binding Závazný

Branch Odvětví

Case Případ

Case law Precedenční právo

Chancellor Kancléř

Civil law Občanské, kontinentální právo

Code Zákoník, kodex

Common law Obyčejové právo

Conduct Chování

Constitutional Ústavní

Court Soud

Crime Trestný čin

Customary law Zvykové právo

Emperor Císař

Empire Říše, království, císařství

Enact Uzákonit

House of Lords deals only with _appeals binds courts below _{but not itself}

Court of Appeal deals only with _appeals and normally binds binds courts below itself High Court - Family Division - Chancery Division - Queen´s Bench Division

binds courts below but not itself

Crown Court deals with criminal _{law disputes} binds no-one

County court deals with civil law

disputes binds no-one

Magistrates´Court deals with criminal, matrimonial, licensing cases

Enactment Uzákonění, nařízení

Funeral Pohřební

Government Vláda

Impartial decisions Nestranná rozhodnutí

Inheritance Dědictví

Injunction Soudní příkaz/zákaz

Judge Soudce

Judgement Rozhodnutí, rozsudek

Judicial Soudní

Jurisdiction Soudní pravomoc/příslušnost

Justice Spravedlnost

Law Právo, zákon

Legislation Zákonodárství, legislativa

Legislative branch Zákonodárná moc

Litigant Strana ve sporu

Ordinance Vládní nařízení, místní vyhláška

Petition Žádat

Procedural Procesní

Property Věc, majetek

Real property Nemovitost

Redress, relief, remedy Náprava, odškodnění

Regulation Předpis, směrnice, nařízení, vyhláška

Roman law Římské právo

Rule Pravidlo, norma, předpis

Specific performance Konkrétní plnění

Statute Zákon

Substantive Hmotný

Torts Občanskoprávní delikty

Trial Soudní proces, řízení

Trust Správa cizího majetku

1. ANSWER THE FOLLOWING QUESTIONS

1. Which two parts does a judgement have and how do they differ? 2. When was the Justinian Code formed and why was it so important? 3. What was included in the Code of Hammurabi and when was it formed? 4. What is the Qu´ran?

5. What are the principles of equity?

6. What is the difference between common law and civil law? 7. What is a precedent?

8. What does the term stare decisis mean? 9. What are the sources of common law?

10. Which three meanings does the word law have? 11. Which countries follow civil law system?

12. Which countries follow common law system? 13. What is the name of the Islamic God and Prophet? 14. Why did the King establish the Court of Chancery? 15. Which courts form the English court system?

2. TRANSLATE THE SENTENCES

1. Rozhodnutí vyššího soudu je závazné pro nižší soudy. 2. Soudce musí být nestranný.

3. Zákon dvanácti desek byl sepsán v letech 450 a 449 před Kristem. 4. Stare decisis znamená setrvej při rozhodnutém.

5. Kancléřský soud se zabýval žádostmi o mimořádné opravné prostředky. 6. Ratio decidendi je závazná část rozsudku mající sílu precedentu.

7. Kontinentální právo je založeno na římském právu a psaných zákonech. 8. Angličtí soudci vyvíjejí precedenční právo.

9. Zákonodárství, precedenční a obyčejové právo jsou primárními zdroji anglo-amerického práva.

10. Občanské právo je odvětvím práva soukromého.

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ______________________________

3. TRY TO MAKE A CHART OF THE COURT STRUCTURE IN THE CZECH REPUBLIC

4th tier

3rd tier

2nd tier

4. MATCH THE DEFINITIONS WITH THE WORDS AND PHRASES BELOW 1. the place where cases are heard

2. a person with authority to hear and decide disputes brought before a court for decision 3. an earlier judicial decision which influences or binds courts in later similar cases

4. a separate area or subject of law

5. the body of law contained in previous judicial decisions as opposed to statute law 6. the decision of a court in a case brought before it

7. the principle that decisions of courts in previous cases must be followed in later similar cases 8. an Act of Parliament, the body of law contained in Acts of Parliament as opposed to case law 9. the process of examining and deciding a civil or criminal case before a court

10. the system of law developed at Rome and in the Roman Empire

11. a method which the law gives to prevent or compensate a wrong; also called relief, redress, compensation or damages

12. the reason for a judicial decision, the principle on which it is based. It is the part of the decision which is binding as a precedent.

13. it has two meanings, either the process of making written law or statute law 14. independent

remedy, case law, court, impartial, precedent, trial, ratio decidendi, judgement, judge, stare decisis, legislation, Roman law, statute, branch of law

5. FORM ADJECTIVES FROM THE GIVEN NOUNS AND VERBS

judge ___________, law ______________, legislation ____________, custom __________, constitution ________________, text _____________, substance ___________, process ______________, bind ___________, persuade _____________, equity ____________, region ______________, administration _______________, count _____________, education ____________, enter ____________

6. MATCH THE SYNONYMS

1. Lawbook A. Fairness 2. A law B. Things 3. Justice C. Inferior 4. Conduct D. Code 5. Property E. Behaviour 6. Higher F. Redress 7. Lower G. Superior 8. Remedy H. Statute

Městský soud v Praze, Městský soud v Brně, Vrchní soud, Regional Courts, The Supreme Administrative Court, Krajské soudy, District Courts, Constitutional Court, The Supreme Court, Nejvyšší správní soud ČR, Superior Court, Nejvyšší soud ČR, Obvodní soudy v Praze, Ústavní soud ČR

7. ARE THE FOLLOWING STATEMENTS TRUE OR FALSE? 1. The legislative branch of a government is the system of courts. 2. Common law is based on the precedents.

3. The decisions of the Crown court are binding on all higher and lower courts. 4. Among equitable remedies belong specific performance and injunction. 5. The Sharia is the body of Islamic religious law.

6. Civil law is followed in the European countries and their former colonies but also in some regions in the US and Canada.

7. The law of the twelve tables was completed by a group of ten people in 450 B.C. 8. Ratio decidendi and obiter dicta are two parts of equity.

9. The Court of Chancery decided cases where the litigants were not satisfied with the original judgement in their case.

10. Equity originated because the courts of common law took too long to decide cases and their decisions were not always just.

11. In the Czech Republic, the constitutional court is the part of the court structure. 12. When speaking about courts, a tier is the same as a level.

13. William the Conqueror was a Norman duke who defeated Saxons in the Battle of Hastings. 14. In A.D. 528 the Emperor Justinian began a review of the old Roman laws. There were

thousands of Roman laws that ordered life in the empire. The emperor chose ten men to review 1,600 books full of Roman Law and create a simpler legal code. These men were able to create the Justinian Code with just over 4,000 laws.

15. The famous quotation “eye for eye, tooth for tooth” comes from a lawbook written for Ur-Nammu.

8. MATCH THE EXPRESSIONS FROM COLUMN 1 WITH THOSE FROM COLUMN 2 AND TRANSLATE THEM system Ages conduct branch legislative colonies Roman decidendi common decision former decisis ancient dicta Twelve Empire real judges Prophet law judicial law hierarchy Muhammad Stare of Chancery impartial of parliament case of people Act of regulations

Ratio of the courts

Obiter performance

Middle property

Court Rome

Sources

Chromá, Marta, New Introduction to Legal English I, Karolinum, 2003 Rice, Sally, Professional English in Use, Cambridge University Press, 2007 Šopovová, Radoslava, Úvod do právnické angličtiny, Alfa Publishing, 2006 Tozzi, Kamila, Legal English, Linde Praha, a.s., 2004