Fiches - Anglais juridique : the common law legal system

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Clerics also played an important role in the expansion of the King's legal power. They developed a range of claim forms called “writs” and established procedures. Most importantly, they wrote down court decisions wich led to the “precedents” principle.

The concept of “King's Peace” means that the monarch has the right to deal with any local crime = took away some of the lords' power.

→ The Statute of Gloucester ( 1278 )

This statute provided that no case involving an amount of less than 40 shillings should be brought in the royal courts.

By doing so it establishes a procedure and a distinction between courts and crimes in a sort of hierarchy.

→ The distinctive features of common law

- the ground for judging cases are found by the principles provided by past court decisions = system of judicial precedents

- trial by jury who swear on oath ( pretent serment )

- doctrine of the supremacy of the law ( meant that no one is above the law not even the king; now means that acts of the government can be challenged in court )

Statutory interpretation

→ The need for statutory interpretation

The law in a statute should always be clear and explicit, however there can be disputes over the meaning of a word or a phrase. Ex:

- a broad term ( word that covers several possibilities )

- ambiguity ( word can have several meanings )

- a drafting error ( erreur de rédaction )

- new developments ( sometimes an old act doesn't cover present day situations ex: new tech)

- changes in the use of language

- failure of legislation to cover a specific point

The juge so has interprete laws using techniques called the rules of statutory interpretation.

The interpretation is a creative process and so inevitably involves the judiciary in the process of creating laws.

→ The rules of statutory interpretation

- The literal rule : the judge will give the words in the statute their ordinary every day meaning. Ex: the Fisher vs Bell case ( 1960 )

- The golden rule: if the literal rule produces an absurd result the court should look for another meaning of the word. Ex: the Sigsworth case ( 1935 )

- The mischief rule: if there is a gap, the judge should interprete the statute is such way that th gap is covered. Ex: The Corkery vs Carpenter case ( 1951 ) - un saoul sur sa bicyclette, la loi disait que c'était illégal d'etre saoul au volant d'un véhicule sans préciser pour le vélo, les juges ont en conclu que la loi couvrait quand meme les bicyclettes

=> These rules act as safeguards.

→ The rules of language ( je crois qu'on s'en fou un peu )

- Ejusdem generis ( recherche du champs lexical de la phrase pour déterminer le sens exacte d'un mot )

- Expressio unuis est exclusio alterius ( the express mention of one thing excludes others )

- Noscitur a sociis ( the word must be looked at in context and interpreted accordingly )

Conclusion: legislator canno't anticipate all cases because laws are made to be general, also they are sometimes absolite or not explicite, so the judge