Common law 4 meanings
- Law developed by judges in the 11th and 12th century to form a ‘common’ law for the whole country (as opposed to the situation prior to the Norman conquest). The Norman conquest was in 1066.
- The rules (substantive and procedural) developed by judges; ‘judge-made law’. Most of the rules are judge-made law.
- Legal systems based on the English legal system; ‘common law systems’ (as opposed to civil law systems).
- Law used in common law courts prior to the reorganization of the court structure in 1873-75 (as opposed to Equity in the Chancery courts). Law used in courts is one of the most complicated. Equity is very important.
EU countries with a common law system are:
- Republic of Ireland
- Malta (mixed system with common law)
- Cyprus
Legal systems of the United Kingdom
The United King of Great Britain and Northern Ireland consists of four nations, with distinct legal systems for:
* England and Wales
* Northern Ireland
* Scotland
Great Britain consist of?
- England
- Wales
- Scotland
Are there formal sources in common law?
No formal list of sources * Unlike continental legal systems, there is no formal list of sources.
- The source is caselaw and custom as developed in the common law.
- The most important source of new rules today is legislation.
- Recent addition: European law as a source of legal rules.
The original source is reason:
- The source of legal rules is equity, reason and good sense (Lord Mansfield 1773)
- For common law it is said to be logical reason, for equity moral reason
- Legal rules should therefore be understood from the point of view of justice
- Ideal legal rules grounded in justice are not created or invented but discovered
Parliament as a rule-maker
Parliament as a rule-maker * Parliament is the most important law-maker in terms of the volume of rules created but also in terms of hierarchy.
- Parliament is sovereign and supreme and as such has the ultimate decision-making power = Parliamentary sovereignty (in the UK): no court can question the legislation made by Parliament. Government is not sovereign ()
- The position of Parliament was settled in the Bill of Rights (1688/9)
- R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41
Legislation is written in very precise language by specialised legal draftsmen. Legislation is not subject to judicial review by judges.
A statute whats that?
typical piece of legislation
STATUTORY INTERPRETATION
The highly-skilled work of the parliamentary legal draftsmen is aimed to make the law clear and to avoid the need for statutory interpretation. Statutory interpretation is the interpretation of primary legislation. However, often interpretation is needed for a variety of reasons.
Why might there be a need for statutory interpretation?
- Judges can be hostile to legislation, preferring not to assist the legislator in achieving the aims of the statute.
- The Interpretation Act (1978) defines many words and phrases. These definitions should be used in interpreting statutes. The rest are left to the court to deal with. Therefore the courts have developed their own rules of statutory interpretation.
- It is needed for unclear wording.
to interpret
to construe
interpretation
construction
Reasons that statutory interpretation is needed:
London and North Eastern Railway Company v Berriman [1946] 1 All ER 255
*unclear wording
* broad wording
* new developments
* drafting mistakes
* change in meaning of words
* mistake in the legislation
What is the literal rule?
= Using the ordinary and natural meaning of the words used. There is no ambiguity.
What are the good sides of the literal rule?
▪ literal rule respects supremacy of parliament
▪ encourages careful drafting
▪ promotes clear laws that anyone can understand.
What are the bad sides of the literal rule?
can lead to absurd results
▪ ignores the limitations and ambiguities inherent in the English language
▪ can be a ploy of judges to ignore Parliament’s wishes (elected representatives of the people)
Whats the golden rule?
= The rule essentially requires a court to look at the words in their context if the literal rule leads to an absurd result
The rule was clearly stated by Lord Wensleydale in Grey v Pearson (1857 HL Cas 61):
“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.
Even though the formulation of the rule by Lord Wensleydale makes clear that the golden rule should only be applied to avoid an absurdity in the interpretation, there is no test to determine what is an absurdity. It allows judges some flexibility in interpreting the statute by defining broadly what is and what is not an absurd outcome
Whats the mischief rule?
Deals with statutes that deal with a problem or lack of a rule in the common law. And then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.
Heydon’s Case (1584) sets out 4 elements:
1) What was the common law before the making of the Act?
2) What was the mischief and defect for which the common law did not provide?
3) What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth.
4) The true reason of the remedy.
Whats the purposive approach?
We need to interpret this law - what did the ministers said etc?
= can be used in the absence of ambiguity or uncertainty
= uses extrinsic materials to aid the interpretation (e.g. Hansard)
= It is a controversial approach as it goes against the tradition in English Law – a kind of heresy.
THREE LANGUAGE RULES
- Ejusdem generis (Eiusdem generis)
- Expressio unius est exclusio alterius
- Noscitur a sociis
- Ejusdem generis (Eiusdem generis)
where a list of words is followed by general words, these general words are limited to the same kind of items as the specific words.
- Expressio unius est exclusio alterius
The express mention of one thing excludes others. Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list
Noscitur a sociis
Words take their meaning from their context. They must be read and interpreted in the context. This involves considering other words in the same section or other sections of the Act. The rule requires to understand the word ‘by the company they keep’, that is, the other words in the provision or the Act.
Whats case law?
The desicions of the court becomes the law
