The sources of English Law

Transcription

1 Inglese giuridico Prof.ssa C.M. Cascione The sources of English Law Lezioni n. 4-5

2 A) THE LEGISLATION Legislative sources are:! primary legislation (Acts of Parliaments/statutes)! secondary legislation (delegated legislation)! European legislation

3 PRIMARY LEGISLATION Acts of Parliament the highest form of law in England The Parliament is sovereign = The Parliament is legislatively supreme The Acts of Parliament cannot be challenged in a court (judges cannot question or disobey an Act of Parliament)

4 The process of enacting laws Acts of Parliament have to be preceded by a proposal It can come by: " The government " Advisory agencies " Pressure Groups " Single members of Parliament After the proposal follow: " Consultation period " Drafting (BILL) " Enactment

5 First reading Second reading Commitee stages Report stage Third reading Passage to the other House Royal Assent

6 Secundary legislation The Parliament may delegate an other body to make legislation in a specific area of law: there is a legal transmission of legislative powers by the Parliament to other institutions. Secondary (or delegated) legislation is law made by certain individuals or institutions acting under a grant of legislative power from Parliament. This grant is generally established in a enabling Act, which establishes a framework of general principles and gives powers to others to fill in the details (parent Act)

7 There are three main forms of delegated legislations:! Statutory instruments: rules, regulations and orders issued by ministers and national in effect! By laws: rules generally issued by local authorities and local in effect on specific matters.! Orders in council: rules issued by the Privy Council, generally used only in cases of emergencies.

8 Structure of English statutes! Short title: the name by which the case can be cited in cases and discussions Human Rights Act 1998; Terrorism Act 2000! Official reference: it is the technical title of the Statute 1998 chapter 46; 1999 c. 31; 2000 chapter 11! Long title: a precise indication of what the statute is designed to achieve. An act to provide. ; An act to make provisions.! Enacting words: Be it enacted by the Queen s most excellent majesty, by and with the advice and consent of the Lord Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows

9 The Body of the statute! It is broken into sections which are the provisions of which the statute is made (s).! Every section has a heading, that gives a short description of the content.! In longest statutes sections can be divided in subsections, dealing with different topics, indicated by numbers or letters.! In some statutes some legal provisions may be put into schedules to the act! Statutes often contains a definition section usually located at the back of the act; a special dictionary of terms used in the act.

10 B) THE JUDICIAL DECISIONS Judicial opinions are written decisions authored by judges explaining how they resolved a particular legal dispute and explaining their reasoning

11 What s in a judicial opinion a) the caption! The caption includes the last name of the person who brought the action (the claimant) and the last name of the person that has been sued (the defendant). White v. Brown; Smith v. Jones! In criminal proceedings, the action is brought in the name of the Crown, which personifies and represents the State. R. v. Brown! In the appellate litigations the caption is composed by the name the appellant (who lost the action in first instance) v. the appellee (the person against whom the appeal is filled)

12 b) the case citation It is composed by: # the name of the Court that decided the case # the year of the decision # The chapter and volume of the law report in which the decision is quoted c) the facts of the case.what happened? X agreed to give 100 to Y and then changed his mind X shot Y and Y died

13 d) procedural history what happened in the previous phases of the proceedings? e) legal sources What are the legal sources that can be applied to the case? In the opinion could be mentioned: - legislative sources (acts of parliaments, regulations ), specifing the provisions that are usefull in deciding the case - precedents (previous decisions related to the case that the court is arguing)

14 f) legal issues These are the legal questions the court is going to answer to decide the case. Did X make a breach of contract? Was X liable for negligence? g) decision What dis the court decide in relation to the above issues? X made a breach of contract X was not liable for negligence

15 h) Reasoning the reasons why a court took a certain decision and gave certain answers to certain issues. In the reasoning we have to distinguish between the:! ratio decidendi: that is the rule of law expressed by the judge for that case; it is the only part of the opinion that can be binding for new cases! obiter dicta: that are parts of the sentence which are not necessary for deciding the case i) judgement j) awards

16 dissenting and concurring opinions Generally most of English judgements are taken by a number of judges. They vote and the opinion of the majority prevails Often, in common law decisions are also highlighted the:! Concurring opinions: are opinions of judges who voted in the same sense of the majority but they argued their reasoning on different legal rules, or on a different legal rationale! Dissenting opinions: are opinions hold by judges who voted in favour of the losing side.