英美司法制度Lecture 2 Legal System

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Lecture 3 Legal System (Sources of American and English Law) Common law Common law originated from the time of Henry II. He sent judges to the country to dispense the king’s justice with little or no statutory law. Decisions were based on rules of law---an individual judge’ sense of fairness. Common law: The part of law that is enacted, non-statutory, common to the whole land and to all Englishmen.
Lecture 3 Legal System (Sources of American and English Law) Disadvantages of Case Law
Bulk & Complexity: after many years of accumulation the case law can be found scattered over more than thousands of volumes of law reports and that makes the law difficult to learn and apply. Rigidity: Once a decision is made, even though it is wrong, it is difficult to overrule it.
Judicial remedies: equitable remedies and legal remedies (remedies provided by the common law) Legal remedies: damages The amount of money awarded to make the injured party whole. The sum shall be equal to the loss.
Lecture 3 Legal System (Sources of American and English Law)
Rules and Maxims Of Equity:
e.g. (1) “Equity will not suffer a wrong to be without remedy” (2) He who comes to Equity must come with clean hands” Plaintiffs who have themselves been in the wrong in some way will not be granted on equitable remedy.
Lecture 3 Legal System (Sources of American and English Law)
Case law (judge-made law)
It comes from the decisions made by judges in the cases they try (judgments). The judgment is composed of two parts: (1) ratio decidenti: an explanation of the legal principles on which the judge has made a decision; (2) obiter dicta: a lot of comment which is not strictly relevant to the case. ratio decidenti is a binding precedent which forms case law; obiter dicta is a persuasive precedent.
Lecture 3 Legal System (Sources of American and English Law) Equity
Common Law & Equity By 12 Century, common law courts has developed which applied this common law. Civil actions in these courts had to be started by a writ, which set out the grounds for claim. This system became inflexible when the Provisions of Oxford prohibited the creation of new writs.
Lecture 3 Legal System (Sources of American and English Law)
Statutory Law (legislation)
In U.S.: Acts of Congress and state legislatures; In Britain: Acts of Parliament; delegated legislation Delegated legislation: Parliament delegates the power of law-making to government departments, local authorities and public bodies(e.g. British Rail).----- bylaws, Ordinances, etc. There is an extensive and steady growing of statutory law in Anglo-American countries.
Special Characteristics of Equity:
relief in the form of specific performance and the injunction
Lecture 3 Legal System (Sources of American and English Law)
Lecture 3 Legal System (Sources of American and English Law)
Relationship between common law and case law Similarities: (1) both rely heavily on the rule of precedence. (2) both are often described as “judge-made law” Differences: (1) case law is a court’s interpretation of an existing constitution or statute. (2) a common law rule can be set aside by the enactment of a statute.
Lecture 3 Legal System (Sources of American and English Law) Case law (judge-made law)
The essence of case law is the doctrine of precedent (stare decisis): Previous decision of a court of an equivalent status or higher must be followed. E.g. a decision made by the House of Lords is binding on all the courts in Britain, including itself. A High Court decision is binding on a county court, but it can be overruled by the Court of Appeal.
Lecture 3 Legal System (Sources of American and English Law) Equitable remedies: are awarded only
when damages are inadequate to cover the loss of the wronged party. Specific Performance: an order granted by a court requiring one party to carry out a contract
Lecture 3 Legal System (Sources of American and English Law)
A Brief Introduction to Equity
Equity literally means “fairness” and “natural justice”. Equity was first granted by the King, and later by his Chancellor to afford relief in hardship cases. In the 15th century, equity developed into an independent legal system and judiciary (Court of Chancery) Equity presupposes the existence of the Common Law. The rules of Equity supplements and modifies the Common Law
Lecture 3 Legal System (Sources of American and English Law)
Advantages of Case Law: (1) certainty
the previous decisions are binding on future cases and people will know similar case will be decided in the same way. Therefore, they can regulate their conduct according to the precedents. (2) being practical the legal rules laid down by case law are from cases which have been existed in reality. The rules are not solely result of academic research. They are more practical which are in close touch with the needs of everyday life.
Lecture 3 Legal System (Sources of American and English Law)
Sources of American Law 1. Common law 3. Statutory law 5. Customs Sources of English Law 1. Common law 3. Legislation 5. EU law 7. Treaties 2. Case law 4. Equity 6. Treaties 2. case law 4. Equity 6. Customs
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