The assessment will be based on a one-hour

written examination.

Part A two short questions (essay). Students

are required to answer these questions in
English (50 % of the marks).

Part B  multiple choice questions (MCQ test)

(50 % of the marks).
- Overview of the central institutions of
common law, mainly in the UK context.

- Understanding of the techniques of legal

reasoning such as precedent and
statutory interpretation.
 Chapter 1 Chapter 2
The Parliamentary Structure The Courts Structure

A - What are the Courts ?

A - What is Parliament? 1 – The hierarchy of the
1 – The parliamentary system Courts
2 – The separation of powers 2 – The importance of
procedural law
3 – Primary legislation and
secondary legislation
B - What is the Judiciary ?
B - What is parliamentary
sovereignty? 1 – The constitutional
position of the Judiciary
1 – How parliamentary
sovereignty is justified? 2 – The relationship between
Parliament and judges
2 – The powers of Parliament
 Chapter 1 Chapter 2
Case-law and Precedent Statutory interpretation

A - What is Precedent? A - How judges interpret

1 – The distinction between laws?
ratio decidendi and obiter 1 – Why judges must
dictum interpret laws?
2 – The binding precedent 2 – The alleged methods of
interpretation
B - How is Precedent
implemented? B – The impact of European
1 – The issue of flexibility methods of interpretation
2 – The modern practice by 1 – The purposive
the higher courts interpretation
2 – Interpretation of
secondary legislation
The roots of Common Law
 Before the Norman Conquest of
1066
- No unitary legal system;
- Anglo-Saxon society was divided
into a number of kingdoms.
After the Norman Conquest in 1066:
Medieval kings began to consolidate their
power.
New institutions of royal authority and
justice:
- Secular tribunals;
- King’s judges respected the decisions of
one another; Judges travelled round the
country (King’s Peace) → judges were
asserting the authority of the central State;
- New forms of legal action : writs
(royal orders which are permissions
given by the King)  each of them
provided a specific remedy for a
specific wrong.
 the law was common to the whole
country
 common law is the law that
relates to everyone.
- In the Middle Ages, common law in
England coexisted with other
systems of law (church courts ; rural
and urban courts).
- 17th century : common law
triumphed over the other laws.
Parliament claimed the right to
define the common law.
Common law and stability of
constitutional monarchy:

-historical continuity and

development from the Restoration
of 1660 (Charles II returned to the
throne after the Civil War) to the
present day;
-centralized and unitary state (≈13-
14th century);
-constitutional settlement (Bill of
Rights 1688).
This high degree of political
stability favours the continuity of
institutions.
Common Law and Civil Law
Civil law systems

 Codified system: comprehensive and

updated code (French Civil Code -
German Bürgerliches Gesetzbuch)
- Easily accessible
- May take a while to effect necessary
amendments
 Sets out general legal principles
 Judges have limited discretion/power
Common law systems 
- Decisions of the court (piecemeal);
- Uncodified system;
- Largely based on precedents which are
maintained over time  Judges’
interpretation very important
- No comprehensive compilation of legal
rules and satutes
nevertheless
- Law and Case Reports (late 19th century);
- Importance of legislation.
- The phrase common law refers to
all those legal systems that have
adopted the historic English legal
system.

The term ‘english’ is more accurate

than the term ‘british’.
All lawyers in the common law world
share a common approach to legal
reasoning.
- The term civil law refers to those
other jurisdictions that have
adopted the European continental
system of law derived essentially
from ancient Roman law.
Common Law in the World
With the spread of British
colonization, the common law
system extended over various parts
of the globe
In British colonies English
law was applicable by settlement or
by imperial statute.
Primacy of English common law in british
colonies by means of:
- the Judicial Committee of the Privy
Council as a final imperial court of
appeal;
- the courts and judges : in the early
decades of British colonies  English
barristers;
- the lawyers  they brought English legal
culture (Canada : Law Sociey in 1797).
As colonies gained independence, the
newly independent countries adopted
English common law system
 reception statutes were
passed in the former American
colonies : the new nation ‘received’
pre-independence English law.
Adoption of the common law in the
newly-independent nation was not a
foregone conclusion

 Jeffersionans in the USA.

Common Law and Equity
In the 14th century, the common law
became more rigid:

- The system of writs became too

highly formalized (‘no writ, no
remedy’ - Provisions of Oxford
1258);
- Institutional sclerosis of the common
law courts (Courts of Exchequer, Common
Pleas and King’s Bench) ➔They refused to
deal with matters which did not fall
within the particular parameters of
procedural and formal constraints;

- other faults with the common law courts

(juries ; the common law had only one
remedy, damages).
Litigants developped the practice of
petitioning the King himself ("Fountain of
Justice »).
The King delegated the task of making
decisions to the Lord Chancellor (who was
one of the King’s principal advisers).
The Lord Chancellor was an expert in
common law.
Finally, litigants present petition directly to
the Lord Chancellor.
By the end of the 15th century:

- Court of Chancery (1474) ;

- decisions were based on equity,
as distinct from common law;
- ‘equitable’ and ‘fair’ decisions.
-Equity was a response to the
percieved weaknesses in the
common law system.
-Equity began as a court a
conscience.
- Exceptional jurisdiction.
The Court of Chancery existed
alongside the courts of common law
possibility of tensions.

Early part of the 17th century:

Equity must prevail where equity and
common law conflict.
Judicature Acts 1873-1875:
The Acts merged the systems of common
law and equity : the Supreme Court of
Judicature
 the same courts applied both
systems.

Lord Cairns in Pugh v Heath (1882) ➔ the

court "is now not a Court of Law or a Court
of Equity, it is a Court of complete
jurisdiction."
Nevertheless : the two systems are different

"The two streams have met and still run in

the same channel, but their waters do not
mix" (Maitland 1850-1906).

“The two streams of jurisdiction,

though they run in the same channel, run
side by side and do not mingle their waters”
Ashburner’s Principles of Equity
 common law remedies are
availabe of right;

 remedies in equity are

discretionary (‘clean hands’).
 Illustration
 What are remedies for breach of
contract?

Damages are common law remedy  the

basic principle is called the compensation
principle; Livingston v Raywards Coal Co
(1880): “Damages should as nearly as
possible (…) put the party who has suffered
in the same position as he would have been
in if he had not sustained the wrong for
which he is (…) getting (…) compensation.”
Specific performance is the
equitable remedy
 order of the court which compels
the defendant to perform the
contract rather than paying
damages. Much more valuable
remedy than having compensation.
Another example in the law of tort :
What if a neighbour erects a garden shed
partly on my garden? He commits the tort of
trespass.

Are damages an adequate remedy ? Unjust

outcome?

When damages are inadequate remedy the

court can grant the equitable remedy of an
injunction (order to stop a person doing a
particular act).
Equity is also used in the American
common law.
As in England, equity is used to
produce fair results when the
common law is not adequate.