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Licence 1ère année – Anglais 2010
Cours en anglais sur les institutions étatiques de deux grands pays de la Common Law : UK et USA
Enseignante : Mme Myriam DEMAN
?Semaine 3 /12 : lundi 20 et mardi 21 septembre
Section 1: The British constitutional system ( continued)
III – Devolution of power
Since the early 70’s the United Kingdom has engaged into a process ofdecentralisation. It was speeded up in 1988 the enactment of devolution laws grating more autonomy to its national components and creating an ‘almost’ federal state.
A- The Scotland Act 1998
Scotland now enjoys reinforced autonomy but laws enacted by its Scottish Parliament must not overlap with UK laws and must comply with EU laws and ECHR. The UKSC is in charge of checking their compliance.
The executivebody is headed by a First Minister ( to differentiate from the PM of UK) assisted with a Scottish Cabinet including 2 law officers ( solicitor General of Scotland and Lord Advocate). They are in charge of implementing Scottish and UK laws on the territory of Scotland.
B- The Northern Ireland Act 1998
Its autonomy is not as large; its parliament must reflect the double political identity ofunionists and nationalist parties. Even its executive body is dual : a First Minister and a Deputy First Minister elected at the same time but each issued from a different party. Many areas are excluded from enactment or under the control of the Secretary of State for Ireland.
C- The Government of Wales Act 1998
The devolution here has been much more progressive and is even more limited. The Welshassembly( elected) has no legislative power; it can only be consulted by Wesminster on any projected Bill; its power is regulatory
Section 2- The British normative system
I – Sources of law
.
Common law can have several meanings:
* Common law as unified law versus local laws and customs
* or Common law as case law versus Statute law or legislation
* or Common law as a branchof case law versus equity
* or finally Common law as a pragmatic system implying inductive approach versus Roman law seen as codified law implying a deductive approach.
After the Norman conquest local courts applying local laws were replaced in 1066 by Royal Courts which applied the same laws throughout the country: this law, common to all the kingdom was based on a writ system which wasvery limited in scope for the litigant and in remedy; this new Common law is essentially regulating procedure used by judges to administer justice, it is not primarily protecting rights but setting up procedure for limited remedies.
A -Case law
Common law judges tended to base their rulings on previous decisions when the facts were similar : this rule of precedent is technically known as caselaw. Case law plays an important role where the legislation is insufficient. A precedent can be binding or only persuasive. It is the point of law ratio decidendi) given in the holding of a judgment which is binding. Lawyers and judges always need to look at the interpretation of the judges whether based on precedent or on legislation.
The Law Reports citations are read as follows:
* for civilcases: Smith v White (1980) QBD 153 . The plaintiff is smith and White is the defendant; v is read “and “ in British English and “versus” in American English; QBD is the court of Queen’s Bench Division, 153 is the page on the Law reports
* for criminal cases : R v Smith (1995) CC; R means rex or regina and stands for the Crown (or the State); v is read “against”; Smith is the person indictedor defendant; the trial took place in the Crown Court.
B – Common law versus Equity
Because the writ system was so limited, plaintiffs would not often obtain satisfaction in common law courts; they would then turn to the monarch for justice and the Court of Chancery – at the end of the 15th century would start rendering justice in equity. Equity was based neither on pre-existing rights nor on…