English Codification

Question 1

How was England and its former colonies different from the Western European continent

Answer 1

-western European continent: Roman law tradition. Its legal culture is dominated by a code, the Corpus Iuris Civilis, which was introduced by the Eastern Roman Emperor Justinian.

   VS 

• england: governed by the common law tradition

Question 2

What is the common law tradition

Answer 2

Legal culture based on customs that are expressed in the judgements of the judges who administer the law

Question 3

Why did England never codify and never needed to codify its statutory laws? (State 4 reasons)

Answer 3

1. The French Revolution influenced Western Europe to adopt codification, but England resisted because of the violence associated with the revolution.
2. Before 1066, English law was based on customary law and Viking law. After the Norman Conquest in 1066 by William the conqueror who invaded England and governed it as a colony with french influence, French became the official language of the law in England.
3. Henry II, William’s successor, played a crucial role in the development of English common law. introduced itinerant judges who traveled the country to administer the law, contributing to the uniformity of English law. The itinerant judges were a key part of the English judiciary system until 1971 when this system was abolished.

Question 4

What was Henry II, William’s (William the conqueror) successor famous for

Answer 4

Installed the Justices in Eyre (1178-1971)

Question 5

What were the Justices in Eyre (1178-1971)

Answer 5

itinerant judges (royal courts) that would travel through England and administer the law in the name of the King. These Royal Courts were not only a formal way to centralize the judiciary but they also succeeded in centralizing and uniforming English private law – they succeeded to uniform English law since they travelled through the country.

-> abolished in 1971

Question 6

Which country recognised roman law even though it was no part of the Roman Empire

Answer 6

Scotland

Question 7

Before 1066, during Anglo -Saxon England, what was the source of law

Answer 7

Customary law

Question 8

What was the Bayeux Tapestry

Answer 8

William the conqueror fought for the throne of England also through propaganda: he created a huge tapestry where he demonstrated why he held the superior claim to the throne)

Question 9

What did Henry II’s policies aimed at doing

Answer 9

Undermining the competencies of the local courts as much as possible

Question 10

How was a trial started at a royal court

Answer 10

• In the olden days, if you wanted to start a legal case, you needed permission and protection from the King.

• The King would give you a writ, which is like a written order that calls a specific person to appear before a royal judge.

• This process is similar to how legal actions (edicts) were written by Praetors during the Roman Empire before a trial.

Question 11

What was the difefrnece between local and royal courts that made royal courts so popular

Answer 11

• Local courts used local customary laws, which could be quite old-fashioned and sometimes even irrational (like trial by battle). This practice was stopped by an act of Parliament in 1819.

• In contrast, Royal Courts were more advanced. The person who brought the case (plaintiff) would present evidence to a jury. The jury would decide on the facts of the case, while the judge applied the law. This made the royal jurisdiction very popular.

Question 12

Describe the background of royal courts in England

Answer 12

• Judges in Royal Courts had a background in clergy (clergymen) and were familiar with canonical law.

• They could review and set aside unjust man-made laws using canonical equity.

• Gradually, all the different local customary laws were replaced by a single custom/law established by the judges of the King, making it the only source of law.

Question 13

What was the advantage of a judge in the royal court having a background in clearly and being familiar with canonical law in England

Answer 13

-it brought a level of education, fairness, and consistency to the legal system.

-Judges with a background in clergy were often well-educated individuals.

-Their familiarity with canonical law, which was based on principles derived from church teachings, provided a strong foundation for understanding legal concepts and applying them fairly.

-Judges with a clerical background were trained in the system of canonical law, which included principles of justice and fairness.

Question 14

Overall, why was the royal court favoured

Answer 14

In simple terms, the King’s courts were more favored because they had a fairer system with juries, knowledgeable judges, and a single set of laws, while local courts sometimes followed outdated and irrational practices. This helped centralize and standardize the legal system.

Question 15

Who was Henry bracton

Answer 15

-english medieval jurist
-in times of bracton 1250, it could be said that the custom of the King’s court was the custom of England. This is one of the most important reasons why England never codified.

Question 16

Where and did the royal courts find a fixed base

Answer 16

Westminster hall -> 1215

Question 17

What did the royal courts divide themselves into?

Answer 17

1. Court of common pleas
2. Court of King’s Bench
3. Court of the Exchequer

Question 18

What was the Magna Carta

Answer 18

-In simpler terms, the Magna Carta in 1215 established fixed places for court decisions, and England had three main courts. The decisions made by judges were recorded in Yearbooks, creating a common English law that applied across these courts

-“common please shall not follow the king’s court but shall be held in some fixed place’

Question 19

What was the main reason why England never codified law

Answer 19

Because even one of the most important medieval jurists, Henry bracton, in his time stated that the custom of the King’s court was the custom of England

Question 20

What was the Court of Common Pleas responsible for

Answer 20

dealt with all common pleas, namely all legal claims that
were based on civil law

Question 21

What was the Court of King’s Bench responsible for

Answer 21

took pleas of the King. The number of royal writs gradually expanded because of the feudal system introduced in 1066 by William the Conqueror

-> a perfect feudal pyramid had been created, at the top of which there is only the King, from whom every user of the land directly or indirectly derives his rights (subinfeudation). Every feudal chain ended with the king (land cases were always heard in the bench of the King)

Question 22

What was the role of the court of Exchequer

Answer 22

Would hear in the second instance and mostly tax cases.

Question 23

What were yearbooks

Answer 23

Where Juliet’s of the three types of royal courts would record their judgements. It served as support for the legal practice and since they contained the legal reasoning that led to a judgement

Question 24

What was the provision of oxford

Answer 24

-in view of the unilateral power of the king to issue writs to common people, local rulers attempted to limit this growing power and cut the development of common law

-restricted the King from issuing new writs unless they fit within the framework of existing ones.

-As a result, citizens with legal cases not covered by the existing royal writs were unable to initiate legal actions in the royal courts. This limitation led to a certain “petrification” of common law, indicating that the legal system became fixed and inflexible, lacking adaptability to address new or unique situations.

-In essence, it describes a condition where the development or evolution of common law was hindered or slowed down.

Question 25

What was the court of chancery

Answer 25

• Background: People still wanted fair treatment in courts, so they had to appeal directly to the King, seen as the source of justice.

• Solution: The King’s Lord Chancellor, the justice minister, heard these appeals and created the Court of Chancery.

• Popularity: This court became popular because common law courts couldn’t take on new cases after the Provision of Oxford.

• Examples:
◦Common Law: Required a receipt for debt payment.
◦ Chancery Court: Accepted other proof of payment.
◦ Common Law: Gave damages in money.
◦ Chancery Court: Introduced the option of specific performance if a party didn’t want money damages.

Question 26

Why did the court of chancery become popular

Answer 26

People, seeking fairness, then appealed directly to the King through the Court of Chancery, which became popular for handling cases the common law courts couldn’t after the provision of Oxford

Question 27

Why were the activities of the court of chancery viewed with suspicion by common law lawyers

Answer 27

-they had the impression that the case law of the Lord Chancellor was very subjective

-John Seldon, a very influential sixteenth-century jurist, held that the case
law was rather too subjective and derived from the conscience of the
chancellor.

-they were viewed with suspicion because in the Middle Ages, the chancellor were generally party of the clergy, thus they were not aware of common law and statutes.

Question 28

According t o cannon law what law was nor recoded in customary laws or imperial laws?

Answer 28

Positive law (natural law)
-> The chancellors based their judgments not on canon law but rather on equity/natural law.

Question 29

How as the legal uncertainty and subjectivity of natural law/equity used by the court solved int he 17th century?

Answer 29

Earl of Oxford case

-> A college wanted to sell some land to a buyer, but there was a rule that said land couldn’t be transferred for more than 20 years. So, the college first sold the land to the queen and then to the buyer. This way, the queen would have a solid title, and the college could bypass the rule. However, the sale was not valid. The new dean of the college wanted to cancel the contract so that the ownership of the land would go back to the college instead of being with the queen or the buyer.

Question 30

What decisions did the common law courts and the court of chancery come up with with regards to the Earl of oxford case

Answer 30

A) Common law courts: based their decision on the statute; therefore, the transfer
is null, and the ownership remains with the college

B) Court of chancery: according to natural law, there’s a possibility of overtaking
common law when something unconscionable happens. Generally, equity
follows the law (it supplements, supports, and corrects if needed the law) –
however, in conflict equity will prevail.
In this case, the court found that something unconscionable threatened to
happen – by wanting to annul the contract the college was going against its
own conduct (Estoppel principle)

Question 31

What historical percent existed for a similar system as the decision given by the court of chancery on the case of Earl of Oxford

Answer 31

-one other gal system that like English law, had two sources of law that were applied alongside each other: Roman law

-> In addition to the ius civile, there
was the ius praetorium, which came into existence through the
jurisdiction of the praetor, who like the English lord Chancellor
made additions and corrections to common law.

Question 32

What effect did the book Bleak House 1953 by Charles dickens have not the english procedural system

Answer 32

-criticism towards the english procedural system

-book led to the reform of English law as it criticised the court for chancery

-The book is based on the case Jarndyce v Jarndyce (family law) in which no final judgement was given as everything of the inheritance went to the lawyers.

Question 33

How was common law traditionally taught

Answer 33

-not taught in universities

-people would go to Inns of Court where judges and lawyers would assemble and people would learn common law

Question 34

Whow as William Blackstone

Answer 34

-first professor of common law

-appointed in 1759 to a special professorial chair that was made possible by a bequest from the jurist Charles Viner (‘Vinerian professor’).

-wrote a book called Commentaries on the Laws of England -> for the benefit of legal education (for some time was one of the only books to the general introduction to common law in England)

-opposed to law reforms

Question 35

Whow as Jeremy Bentham

Answer 35

Jeremy Bentham was a student of Blackstone and had opposing views towards Blackstone. Bentham compared common law to dog law. He was in favour of law reforms; in fact, he coined the term codification and advocated it to be implemented in England. However, he failed in his attempt to bring codification to England.

Question 36

What was the English Judicature acts/ Judicature acts (1873/1875)

Answer 36

-inspired by the Field Code
-stresses the fusion between procedures of common law (court of common law) and of equity (court of chancery)

Question 37

What court was to be seen as the court of common law and equity

Answer 37

-high court of justice

Question 38

Why were divisions made in the High Court of Justice

Answer 38

-because common law and equity remained separate sources of law, thus divisions were made:

• Chancery Division: cases about equity
• King’s Bench division: cases about common law

Question 39

What other divisions were there win the High Court of Justice

Answer 39

• Admiralty division
• Probate division
• Family division (old Civil law courts)

Question 40

What was the court of appeal

Answer 40

-english appellate court

-In England, if you wanted to appeal, you had to ask for permission from the court that made the initial decision or from this higher Court of Appeal. This was a way for the judges to limit the number of cases they had to deal with.

Question 41

What was the Supreme Court of the United Kingdom

Answer 41

-highest court for the land
-was later replaced by House of Lords (2009)

Question 42

Can a judge test an Act against common law?

Answer 42

Dr Bonham’s case: no, judges cannot test statutory acts against common law, because the judges are not the sovereign, the Parliament is.

Question 43

How did english jurists define the word interpretation

Answer 43

-Interpretation is the normal linguistic process whereby meaning is linked to a
word

Question 44

How did English jurist define the term construction

Answer 44

Construction is the process by which unclear or ambiguous provisions in law are given a clear meaning

Question 45

What was the problem of grammatical interpretation of statutes by common law judges

Answer 45

many cases wouldn’t have solutions because judges would stick to the strict meaning of the words only; the solution would be that for judges to interpret statutes strictly and then apply stare decisis

Question 46

What did Lord Denning state about the english approach in contrast to the European approach

Answer 46

-spoke in a negative way about the traditional, restrictive method of law interpretation several times and argued for more extensive methods to interpret the law.

-suggested that English judges should start applying European legislation in a broad and liberal way and that the same should be done with their own legislation

-although he became influential but English judges still have a strict interpretation of the law

Question 47

What was the 1966: The House of Lords and stare decisis

Answer 47

the Supreme court decided that since they are the highest court of the land there are cases in which too rigid adherence to precedent may lead to injustice – therefore they don’t have to abide by the precedent if the previous decision is found to be wrong (an exception to the rule). Still, all lower judges are bound by previous judgements.

Question 48

Define stare decisis in the way an english judge would

Answer 48

Stare decisis: ‘to stand by things decided’; a judge is bound by his own judgement, even if he later realizes that that statement has had all kinds of undesirable consequences.

Question 49

From when were english judges obliged to follow precedents from previous judgements

Answer 49

-19th century
-in order to create legal certainty and uniformity of the law

Question 50

When’s as the first common law decision, where a judge had to follow a precedent

Answer 50

-1944
-english court of appeal
- it had to be decided whether a judge was also bound by a precedent if he believed that the precedent was wrong

Question 51

What is the English judicial system like

Answer 51

1. High Court: first instance court
2. Court of Appeal: second instance court – deals with questions of law and not of
   facts
3. Supreme Court (former House of Lords): highest instance – chooses the cases that
   are to be tried by the other courts

Question 52

Summarise the case of YOUNG v. BRISTOL AEROPLANE CO. LTD.

Answer 52

The appellant, Young, was a workman at the Bristol Airplane Co. Ltd in a factory where he lost three fingers due to his employer’s carelessness to fence a machine. Because of the accident, the respondent offered him a weekly sum of money and Young, unaware of his possibility to appeal for compensation, accepted.

Question 53

What did the court of appeal state regarding the YOUNG v. BRISTOL AEROPLANE CO. LTD.

Answer 53

Sect. 29 (1) of the Workmen’s Compensation Act that states that if compensation has been paid under the Act and accepted knowingly and willfully, there can be no compensation from employers under common law.

According to the Court of Appeal, a workman that has been paid compensation under the Act is precluded from recovering damages from his employers at common law.

Question 54

Why did the worker in the case of young v. Bristol aeroplane co LTD want to recieve compensation though common law as well

Answer 54

-The compensation of the Act only ensures that he receives the wages that he would normally receive. Probably he had more expanses that his normal salary wouldn’t cover.

Question 55

Which are the exceptions to the rule that the Court of Appeal is bound by its
previous decisions?

Answer 55

The court of appeal is bound to follow previous decisions of its own jurisdiction with three exceptions:
(i) Two conflicting decisions – court can choose one of them

(ii) Conflicts with subsequent decision of House of Lords – court has to follow
House of Lords

(iii) per incuriam (through lack of care: if litigants forget statutory laws or cases)
– court not bound

Question 56

Can you determine from the judgement what was decided in the cases of Perkins
and Selwood? Which of these two precedents do you consider to be the most
harmful to the case of the plaintiff?

Answer 56

Young’s appeal has been rejected by referring to two precedents that were fatal for him:from this judgement, it can be deduced that in the Perkins and Selwood cases, the plaintiff was also not awarded any compensation.

-Selwood’s most closely resembles W. Young’s case. In Selwood’s case, there had been no claim, and no exercise by the employee of his right of choice, as in the case in question. Selwood also did not know that he would probably get more through common law.

-In Perkins, the employee had claimed compensation himself, in the case in question the plaintiff had already received it.

Question 57

Any court may seek to distinguish its present case from that of a binding
precedent, in order to reach a different decision. Would you consider it possible to use the ‘beautiful art of distinguishing’ in order to circumvent the precedents and to decide the case in the way the Court of Appeal obviously wanted?

Answer 57

The only way in which an English judge can escape the binding force of a precedent from a predecessor of similar rank in the judicial hierarchy is by deciding that the facts of the case at hand differ too much from the facts of the precedent. Thus, a distinction is made and this procedure is often called the beautiful art of distinguishing. However, obviously, it is not always possible to make a distinction, so sometimes judges are stuck with the rule of law from precedent.

Question 58

Summarise the case H.P. Bulmer Ltd and another v. J. Bollinger SA and others

Answer 58

In 1970 French producers of champagne brought an injunction against an English firm for naming their drinks champagne. To counter this claim, two of the biggest producers of cider in England brought an action against the French sustaining that they had used the expression champagne cider and perry for over 70 years. The French again claimed an injunction to stop the English producers from using the word ‘champagne’ in connection with any beverage not being a wine produced in the Champagne district of France.
Therefore, a preliminary question before the European Court in Luxemburg. European judges utilize broad interpretations of the law, while English judges interpret statutes as strictly as possible.

Question 59

Which fundamental provision of European law forms the object of this case?

(H.P. Bulmer Ltd and another v. J. Bollinger SA and others)

Answer 59

Article 177 of the EEC Treaty – where judges are obliged to refer preliminary questions to the EC

Question 60

What are preliminary questions

Answer 60

legal queries submitted by national courts to the Court of Justice of the European Union (CJEU) for guidance on the interpretation or validity of European Union law. When a national court faces a case involving EU law, and there’s uncertainty about the interpretation or application of EU rules, the national court can ask the CJEU for a preliminary ruling.

Question 61

Can you deduce from this case differences in the interpretation methods used by the English and the continental judges? Which method of interpretation is preferred by English judges and which method of interpretation is often advisable for interpreting European laws?
(H.P. Bulmer Ltd and another v. J. Bollinger SA and others)

Answer 61

English judges use a very strict interpretation (grammatical interpretation).
The European Courts use mostly teleological, systematic, and sometimes historical interpretation.

Question 62

Whose prerogative is it to interpret a rule of European law, and whose to apply it?

Answer 62

-Application: national judge -Interpretation: ECHR

Question 63

Who decides whether a rule of European law needs to be submitted for interpretation to the European Court of Justice in Luxembourg?

Answer 63

the national judge.

Question 64

What was eventually decided about the use of ‘champagne perry’ and ‘champagne
cider’?

Answer 64

The court declined to refer the case to the European Court of Justice (it is not the European Court to give advice to the national court when it should or should not refer a question to the European Court).

Question 65

What are the requirements for a case to be worthy of referral to the European Courts

Answer 65

1. Conclusive Point:
   In Simple Terms: The key issue in the case must be clear and settled. There shouldn’t be any confusion about the facts.

2.No Previous Ruling on the Matter:
In Simple Terms: Make sure that there hasn’t been a similar case with a decision on the same issue before. The matter should be new or unique.

3. Acte Claire (Clear Act):
   In Simple Terms: If the English court believes the legal point is already clear and free from doubt, meaning they think they can apply the law without any confusion, they may not need to ask for the opinion of the European Court.