TOPIC 2.

AN INTRODUCTION TO THE UNITED STATES AND THE UK LEGAL SYSTEMS (II)

Origins of the Common Law. Common law vs. civil law legal systems: sources of law, principle of precedents and
doctrine of stare decisis, method of legal thinking and finding of justice, inquisitorial versus adversarial
proceedings. Overview of the Unites States and the UK Court systems.

Legal terms:

- Legal system: ordenamiento jurídico

- Legal scholars: doctrina
- Wrong: ilicito
- Trespass: entrar en una propiedad ajena sin permiso
- To seen legal reddress: solicitar un remedio
- Statute: ley

History of the common law

• Common law tradition emerges in England during theMiddle Ages.

• After Norman Conquest (1066), medieval kings began to centralize power and establish new institutions
of bothroyal authority and justice
• King Henry II created a unified system of law “common” to the country, which was initially applied by
the Royal Central Court, which was placed in Westminster.
• Common law was expanded by sending royal judges from the Central Royal Court throughout the
country. Their decisions would be recorded and filed: origin of precedents and doctrine of stare decisis.
• The crown established new forms of legal actions through a system of writs or royal orders. Writs were
issued by writ writers and they provided a specific remedy for a specific wrong
o Writ: written order requiring a person to appear before a court. It is a judicial order by the King
to present before a court. If someone sought legal redress (protection) he had to address to the
representatives of the King, the writ writers in order to access to the royal court.

• In the 14th century, the system of writs became highly formalized and too rigid to achieve justice and a
new court was created: court of equity or Court of Chancery. It was authorized to apply principles of
equity based on many sources (Roman law, natural law…)
• Common law and equity were applied within British colonies across continents
• Courts of law and Courts of equity functioned separately until they were merged by Judicature Acts of
1873 and 1875, which created the Supreme Court of Judicature. However, some US States maintain
separate courts of equity

Civil law vs. common law traditions

Civil Law Common Law

System of law that emerged in continental Europe beginning in System of law that emerged in England
the Middle Ages beginning in the Middle Ages
Continental Europe, countries which received the civil law England, Wales, Ireland, almost all States of
tradition as former colonies of European imperial powers and US, most part of Canada, most countries which
other countries (for example, Russia) that reformed their legal received the common law tradition as former
systems in the 19th and 20thcenturies colonies of the British Empire
Hybrid or Mixed Systems
 Scotland, Quebec, The Seychelles, South Africa, Louisiana, Israel etc.

Civil Law Common Law

Based on codes (collections of laws of a country or laws Based on precedents or case law (the law as defined
related to a particular subject) and statutes (written by previously decided cases) and statutes (written
laws enacted by a legislature) laws enacted by a legislature)

Legislation is the most important source of law Court decisions are the most important source of law
Codes and statutes provides general principles Statutes provide more specific and detailed rules

Civil Law Common Law

Precedents are not legally binding.
Precedents are binding (doctrine of stare decisis).

Courts do not create the law but only apply it and

The courts are given the main task in creating the
interpret it.
law.

Precedents: judicial decisions that have already been made and that may serve as an authoritative example in
future similar cases. They are maintained over time through the records of the courts as well as documented in
collections of case law known as year-books and reports.

Civil law vs. common law traditions

Doctrine of stare decisis (Let the decision stand): principles of law –ratio decidendi– established in earlier cases
should be accepted as authoritative in similar subsequent cases.

Ratio decidendi or rationale for a decision

Obiter dictum

Obiter dictum Legal principle upon which Statement by a judge expressing an opinion and included with,
the decision in a specific case is founded. but not essential to, an opinion resolving a case before the court.

As a general rule, it is binding in later cases. As a general rule, it is not binding in later cases.

Effects of the doctrine of stare decisis

• Vertical effect: judges of lower courts are bound to decisions of higher courts, even if the lower court
considers that the decision is not right.
• Horizontal effect: precedents are binding for current decisions of the court that rendered the
precedent.
o In England, the House of Lords reversed this rule. The Practice Statement [1966] 1 WLR 1234
stated that “(…) too rigid adherence to precedent may lead to injustice in a particular case and
also unduly restrict the proper development of the law. [Their Lordships] propose, therefore, to
modify their present practice and, while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears right to do so”.
 Civil Law Common Law
Adversarial process: trials are seen as a battle between
two opposing sides, and the role of
the judge is to act as a sort of passive referee.
The work of collecting evidence and preparing to present
Inquisitorial process: judges take an active role in
it to the court is accomplished by the litigants and their
trial and legal representatives and parties act only to
attorneys.
aid and collaborate with the judicial inquiry
The essential role of the judge is to structure and
regulate the development of issues by the parties and to
make sure that law is followed and that fairness is
achieved.

UK COURT SYSTEM
Categories of courts:

Civil Courts Criminal Courts

Courts that deal primarily with civil matters: Courts that deal primarily with
1. The county court criminal matters:
2. The High Court 1. Magistrate’s courts
3. The Court of Appeal (Civil Division) 2. Crown Court
4. The Supreme Court (formerly, House of 3. Court of Appeal (Criminal
Lords) Division)
Civil matters: Criminal matters:
1. Relationships between individual people 1. Any breach of the criminal law
(contracts, family law, torts)
2. Relationships between individuals and state
(disputes about tax, actions of a local authority
or other public body)

Superior Courts Inferior Courts

1. Supreme Court 1. County Courts
2. Court of Appeal 2. Magistrate’s Courts
3. High Court They have limited powers and their work is
4. Crown Courts subjected to judicial review by higher
5. Other: Judicial Committee of the Privy courts
Council, Court of Protection...

Reported courts Non- reported courts

Courts whose decisions are regularly reported and Courts whose decisions are rarely reported
therefore can contribute to the development of law.
Types of reports: general reports, commercial law
reports, electronic databases (Westlaw, Lexis Nexis)
High Court Magistrates’ Court
Court of Appeal County Courts
Supreme Court Crown Court

UK COURT SYSTEM: CIVIL COURTS

• Magistrates’ Courts:
o Inferior courts whose decisions are rarely reported
o They are distributed through the country
o As a general rule, magistrates are non trained lawyers, unpaid and part-time (jueces de paz)
o Jurisdiction: family cases
o Appeals are heard by the Family Division of the High Court
• County Court:
o Inferior courts whose decisions are rarely reported
o They are distributed through the country
o They hear the vast majority of civil cases
o Appeals are heard by the Court of Appeal, except for cases of bankruptcy, which are heard by
the High Court
• High Court:
 • Superior court whose decisions are frequently reported
o Appellate and original jurisdiction
o Three Divisions and Divisional Courts within each
o Division, which exercise most of the High Court’s appellate jurisdiction

• Chancery Division:
o Composition: Chancellor of the High Court and 18 judges
o Jurisdiction: equity and trusts, partnership, bankruptcy, companies, patents, among others
o Divisional Court hears appeals in certain bankruptcy and land registration cases

• Family Division:
o Composition: President and 19 judges
o Jurisdiction (at first instance or appeals from County Courts): matrimonial proceedings,
proceedings relating to children…
o Divisional Court hears appeals from Magistrates’ Courts

• Queen’s Bench Division:

o Composition: Lord Chief Justice and 68 judges
o Jurisdiction: contracts, torts, commercial affairs, naval affairs, judicial review
o Small civil appellate jurisdiction
• Depending on the type of case, appeals are heard by the Court of Appeal or the Supreme Court

• Court of Appeal:
o Superior court whose decisions are frequently reported
o Appellate court
o It is bound by its own previous decisions
o Two Divisions: Criminal Division and Civil Division
o Civil Division:
 General jurisdiction
 Appeals from the High Court and certain cases from county courts
o Appeals are heard by the Supreme Court

• European Court of Justice

o In 1973, UK entered into the European Community (today European Union)
o UK is bound by judgments of ECJ: judgments of ECJ overrule those of UK national courts
o Jurisdiction:
 Actions brought by EU institutions, national governments or individuals to determine
whether any measures adopted, or rights adopted, by the EU Commission, EU Council
or any national government are compatible with EC Treaty
 Requests of the national courts to interpret points of EU law

US COURT SYSTEMS

• Federal (national) court system established by art. III of the US Constitution (1789)

o Three levels of courts:

 US District Courts
• 94 trial courts
o Original jurisdiction (they can hear both civil and criminal cases)
 • 94 US Bankruptcy Courts: insolvency cases, except criminal issues
• Special trial courts:
o Court of International Trade: cases involving international trade and
custom issues
o Court of Federal Claims: cases involving federal contracts, the taking
of private property by the federal government and other monetary
claims against the US
• Trial court proceedings are conducted by a single judge
 US Circuit Courts of Appeals
• 12 regional Courts of Appeal
o Appellate jurisdiction
 They affirm or reverse the lower court decisions
 They do not review the facts, but mistakes of law
• Court of Appeals for the Federal Circuit:
o Appeals in specialized cases:
 Cases involving patent laws
 Cases decided by the Court of International Trade and the
Court of Federal Claims
o As a general rule, panels of three judges
 US Supreme Court
• Highest court in the federal court system
• 9 justices
o Chief Justice (president) and 8 associate justices
• Parties or State Supreme Courts can petition the US Supreme Court to hear
their case by means of a Petition for a writ of Certiorari
• Discretionary jurisdiction (it decides whether to hear a case or not). It usually
hears the following cases:
o Cases where a split of opinion among the courts of appeals exists
o Cases where an important constitutional question exists
o Cases where an issue of federal law needs to be clarified
o
• State court systems of each of the 50 States established by their State Constitutions
o Most State Court Systems are made up of:
 Trial Courts:
• Trial Courts of Limited Jurisdiction (specific types of cases: family court, traffic
court, small claims court, etc.)
• Trial Courts of General Jurisdiction (civil and criminal cases)
 Intermediate Appellate Courts (in some States)
• Different names: Circuit Courts, Superior Courts, Courts of Common Pleas,
Supreme Courts, etc.
 Highest State Courts
• Different names: Supreme Courts, Courts of Appeal, etc.
o State Courts are the final arbiters of State laws and State Constitutions
o Their interpretation of federal laws and US Constitution may be appealed before the US
Supreme Court

US COURT SYSTEM: JURISDICTION OF FEDERAL AND STATE COURTS

Federal Courts:
 • Cases in which parties are residents of different States and the amount in question exceeds 75.000
dollars
• Federal questions, id est, cases that arise under the US Constitution, federal law, treaties
• Cases in which 2 or more States are parties
o Cases involving public officials
o Cases on bankruptcy
o Cases on patents
o Cases on trademark
o Cases on antitrust…

State Courts: jurisdiction over cases which do not fall within the exclusive jurisdiction of Federal Courts

• Cases involving State constitutions or laws, cases on torts, contracts, family law, real property, corporate
law, traffic regulation...

In some cases, Federal and State Courts have concurrent juridisdiction. Examples:

• Civil rights claims

• Environmental claims
• Class actions cases...

State Courts Federal Courts State or Federal Courts

1. State constitutional issues and 1. Most cases involving federal 1. Federal constitutional issues
cases involving state laws or laws or regulations 2. Certain civil rights claims
regulations 2. Matters involving interstate and 3. "Class action" cases
2. Family law issues international commerce, 4. Environmental regulations
3. Real property issues including airline and railroad 5. Certain disputes involving
4. Most private contract disputes regulati federal law
(except those resolved under 3. Cases involving securities and
bankruptcy law) commodities regulation,
5. Most issues involving the including takeover of publicly
regulation of trades and held corporations
professions 4. Admiralty cases
6. Most professional malpractice 5. International trade law matters
issues 6. Patent, copyright, and other
7. Most issues involving the intellectual property issues
internal governance of business 7. Cases involving rights under
associations such as treaties, foreign states, and
partnerships and corporations foreign nationals
8. Most personal injury lawsuits 8. State law disputes when
9. Most workers' injury claims "diversity of citizenship" exists.
10. Probate and inheritance matters 9. Bankruptcy matters
11. Most traffic violations and 10. Disputes between states
registration of motor vehicles
TOPIC 3. THE BRITISH CONSTITUTIONAL ORDER

An unwritten Constitution

UK does not have a written Constitution: absence of a document (supreme and rigid) that lays down the
fundamental rules of the State

However, there exists a constitutional system that could be defined as follows: “a body of rules, conventions
and practices which describe, regulate or qualify the organization, powers and operation of government and the
relations between persons and public authorities” (Collin Turpin and Adam Tomkins)

The features of the unwritten Constitution: a political constitution subject to the political process and to the
commitment of the political actors and citizens

• Contains different sources: legal rules (statutes and common law), conventions and practices
• Undetermined: there is not a list of concrete sources
• Fluid: sources can be amended easily (no rigidity)
• Fundamental and material: constitutional sources could be identified for their material content and its
fundamental value

Constitutional sources (I): legal rules

• Statutes: written Acts of Parliament which regulate the system of the government or the exercise of
public power
o Historical statutes: Magna Carta 1215, Habeas Corpus Act 1679, Bill of Rights 1689, Act of
Settlement 1701, Act of the Union with Scotland 1707
o European Communities Act 1972
o Human Rights Act 1998
• Subordinate legislation: legislation made by the executive
o Delegated
o Primary (not delegated): Orders in Council
• Common law: rules created by judges
o Legal powers of the Crown
o Rules related to the safety of the State, public order, prevention of crime, moral welfare of
society

Constitutional sources (II): conventions

•
Two possible definitions
o “Main political principles which regulate relations between the different parts of our
constitution and the exercise of power but which do not have legal force” (Lord Wilson of
Dinton)
o “Social rules of a constitutional character which govern the relations between political parties
or the institutions of government, regulating the manner in which government is to be
conducted” (Jaconelli)
• Nature of conventions
o Rules that are part of the constitutional order