Droit Comparé Américain .pdf

DROIT COMPARE AMERICAIN – MESQ – 2017 / 2018

DROIT COMPARE AMERICAIN – MESQ – 2017 / 2018

DROIT COMPARE AMERICAIN – MESQ – 2017 / 2018

I. HISTORY OF COMMON LAW

INTRODUCTION

What is the difference between Civil law and Common law?

Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.

Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.

COMMON LAW COUNTRIES

· Canada Based on English common law, except in Quebec, where a civil law system based on French law prevails in most matters of a civil nature, such as obligations (contract and delict), property law, family law and private matters).

· UK (England and Wales) Primarily common law, with early Roman and some modern continental European influences.

· United States Federal courts and 49 states use the legal system based on English common law, which has diverged somewhat since the mid-nineteenth century in that they look to each other's cases for guidance on issues of first impression and rarely, if ever, look at contemporary cases on the same issue in the UK or the Commonwealth.

CIVIL LAW COUNTRIES

· France Based on Napoleonic code (code civil of 1804)

· Germany Based on Germanic civil law. The Bürgerliches Gesetzbuch of 1900 ("BGB"). The BGB is influenced both by Roman and German law traditions.

· Estonia Based on German civil law.

· Finland Based on Nordic law.

· Turkey Modeled after the Swiss civil law (Zivilgesetzbuch) of 1907.

CIVIL LAW AND COMMON LAW COUNRIES

· Louisiana (U.S) Based on French and Spanish civil law, but federal laws (based on common law) are also in effect in Louisiana because of federal Supremacy Clause[footnoteRef:1] [1: The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land ]

· Québec (Canada) Canadian federal law in force in Quebec is based on common law, but federal statutes also take into account the bi-juridical nature of Canada and use both common law and civil law terms where appropriate[footnoteRef:2]. [2: After the 1763 Treaty of Paris awarded French Canada to Great Britain, the British initially attempted to impose English Common Law, but in response to the deteriorating political situation in the nearby Thirteen Colonies, the Quebec Act was passed in 1774, which allowed a mix of English Common Law and customary civil law, based on the Coutume de Paris. Codification occurred in 1866 with the enactment of the Civil Code of Lower Canada, which continued in force when the modern Province of Quebec was created at Confederation in 1867. ]

· Scotland (UK) Based on Roman and continental law, with common law elements dating back to the High Middle Ages[footnoteRef:3] (the informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288). [3: The informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288. ]

A. The Roman invasion of Britain

During the 70’s and 80’s AD the Romans, under the command of Gnaeus Julius Agricola extended their control into northern and western England. Legions were located at York, Chester and Caerleon marking the limits of the ‘Civil Zone’. The Romans gradually gave up their conquests in Scotland until in 122 AD and the emperor Hadrian ordered the construction of a wall from the west coast of Britain to the east.

Hadrian’s Wall ran for eighty miles from Newcastle in the east to Carlisle in the west. Designed to mark the boundaries of the Roman Empire, much of the great monument can still be seen today.

B. The Anglo -Saxon times

In Anglo-Saxon times, there existed three fairly distinct legal systems: the Dane Law, adopted after the invasions and the settlement of Scandinavian warriors in the coastal areas of northern and northeastern England; the Mercian Law, which bore traces of Germanic origin and extended around the Midlands; the Wessex Law, which applied in south and west England (Celt Law and Roman Law).

4 different sources of law:

· Danelaw: is the law in force in the part of England held by the Danes before the Norman Conquest. It is also the name given to the area that encompassed the lands of northeast England where Danish customs had a strong political and cultural influence throughout much of the early Middle Ages. The area included Yorkshire (southern Northumbria), East Anglia, and the Five Boroughs, named for its main centers of settlement: Lincoln, Stamford, Nottingham, Leicester, and Derby.

· Mercian Law: a major body of Anglo-

Saxon customs that, along with the Dane law and the West Saxon law, continued to constitute the law in England in the days immediately following the Norman Conquest.

· Anglo-Saxon law, the body of legal principles that prevailed in England from the 6th century until the Norman Conquest (1066). In conjunction with Scandinavian law and the so-called barbarian laws (leges barbarorum) of continental Europe, it made up the body of law called Germanic law. AngloSaxon law was written in the vernacular and was relatively free of the Roman influence found in continental laws that were written in Latin. Roman influence on Anglo-Saxon law was indirect and exerted primarily through the church. There was a definite Scandinavian influence upon Anglo-Saxon law as a result of the Viking invasions of the 8th and 9th centuries. Only with the Norman Conquest did Roman law, as embodied in Frankish law, make its influence felt on the laws of England.

· Roman law, the law of ancient Rome from the time of the founding of the city in 753 BCE until the fall of the Western Empire in the 5th century CE. It remained in use in the Eastern, or Byzantine Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe (see civil law) and derivative systems elsewhere.

The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. To take the most striking example, in a large part of Germany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law”; that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis - the codifying legislation of the emperor Justinian I—this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.

The Anglo-Saxon courts before Norman Conquest were:

· The Shire Court (or Moot), presided over by the Sheriff, the Bishop and the Ealdorman, attended by the lords and freemen of the county, with the priest;

· The Hundred Court, presided over by the Hundredman assisted by twelve senior thanes;

· The Franchise Court, granted to certain persons by the monarch ; the suitors or litigants who brought their case to court were required to pay fees;

The procedure and proof of guilt in Anglo-Saxon courts were quite primitive.

For instance, trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. The test was one of life or death, and the proof of innocence was survival. In some cases, the accused was considered innocent if they escaped injury or if their injuries healed.

Ordeal by fire was one form of torture. Ordeal of fire typically required that the accused walk a certain distance, usually 9 feet (2.7 meters) or a certain number of paces, usually three, over red-hot ploughshares or holding a red-hot iron. Innocence was sometimes established by a complete lack of injury, but it was more common for the wound to be bandaged and re-examined three days later by a priest, who would pronounce that God had intervened to heal it, or that it was merely festering—in which case the suspect would be exiled or put to death. One famous story about the ordeal of ploughshares concerns Edward the Confessor's mother, Emma of Normandy. According to legend, she was accused of adultery with Bishop Ælfwine of Winchester, but proved her innocence by walking barefoot unharmed over burning ploughshares.

Another form of proof in civil cases was compurgation. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons, typically twelve, to swear they believed the defendant's oath. From Latin, “com” = with, “purgare” = make clean, cleanse, excuse. Latin “com” is also an intensifier and turns a word into the superlative form, so compurgation, by etymology, means 'to thoroughly clean or excuse'.

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A. The Norman Conquest

In 1066 William the Conqueror from Normandy, France, defeated the English King Harold in the Battle of Hastings, beginning the Norman Conquest in England. William the Conqueror claimed to be the new King of England and the sole owner of the land. After establishing a feudal system, he realized the need for a common legal system as part of the kingdom’s political organization, propagating this idea which continued later under other kings.

Before the Norman Conquest, disputes had been settled by royal courts which were set up in many villages and solved cases by applying local customs and traditions. The King unified the country by establishing royal courts able to apply a set of rules that were common to the whole realm. Therefore the King sent judges to establish courts in different villages, solve disputes, and gather information about the local rules used. These judges were known as ‘itinerant judges’ since they traveled around the kingdom. After a period of time, these judges met and shared the information collected. Then they decided which customs and rules were more commonly applied to most cases. When travelling and solving cases again, judges tried to apply common laws and not local ones. That is how from the very beginning English law was judge-made law.

Example of Customs used in the division of property:

Two different owners had a land dispute. Two ways could have been applied in order to resolve that dispute.

King's part

B's part

A's part

The Danish custom, which was COW GRAZING: according to Danelaw, each farmer must place a cow in the field. Each farmer receives as much land as his cow can graze in a year. The remaining part belongs to the king.

The Saxon custom, which was RUNNING: according to Saxon Law, each farmer must run around the field, starting from the same point but in opposite ways. The encounter point is used as the second point of the delimitation line.

It was the role of the king to decide which law to apply. Customary law comes from a choice made by the king

from different part of the kingdom to explain each theory to resolve the case and the king was to hear that and to decide which one to apply. And everyone must respect that decision. This is called the rule of precedent.

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In 1066, William the Conqueror, Duke of Normandy, gained the Crown of England by right of battle (he won the battle of Hastings upon Harold Godwinson, a Saxon king). The King's Council was set up, made of barons, lords and bishops. A new feudalism was introduced. Separation of law courts and clerical courts.

Common Law (< Latin-Norman: Commune Ley) = a single system for England and Wales

The King sent representatives in the country:

· The Commission of Gaol Delivery, empowering the judges to clear the goals of untried prisoners if there was no good reason to keep imprisoned.

· The Commission of Oyer et Terminer gave judges authority for the trial of treasons and felonies; that of general gaol delivery empowered them to try every prisoner then in gaol for whatever offense; so that, altogether, they possessed full criminal jurisdiction.

· The Commission of Assize judges selected by the king and appointed and authorized under the great seal, including usually two of the judges at Westminster, and sent out twice a year into most of the counties of England, for the trial (with a jury of the county) of causes then depending at Westminster, both civil and criminal. They sat by virtue of several commissions, each of which, in reality, constituted a separate and distinct court

The representatives asked questions about the customs used as law in the lands (Common Law = customary law). All the information was then written down in Latin-Norman. Then the king then met the representatives in Westminster and asked for the legal solution in each region and chose one (birth of the rule of precedent).

Common Law = the law that must be applied by all inferior courts => hierarchy of Courts

Whenever a plaintiff wished to bring an action in a civil matter against another person, he had to obtain a writ from the Lord Chancellor's office and serve it on his opponent. It commanded the defendant and the plaintiff to attend the royal courts at Westminster on a certain date, unless before that date (nisi prius) the King's justices could hear the case locally, i.e. where the action arose.

A writ was a strip of parchment containing a letter (the content of which varied depending on the circumstances of the case) in the name of the King. It was usually written in Latin and was sealed by the great seal.

The royal judges, known as itinerant justices, granted better justice, which naturally proved to become popular with the people. Henry II reorganized the system by dividing the country into shires and putting the excursions from Westminster on a regular basis.

The judges began to apply the principle of stare decisis (let the decision stand): whenever a new problem of law came to be decided a rule was formed and this rule was subsequently followed by all other judges. The Common Law was finished by about 1250.

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The Court of Exchequer: A very ancient court of record, set up by William the Conqueror as a part of the aula regis (great court in the king’s palace) , and afterwards one of the four superior courts at Westminster, it was, however, inferior in rank to both the king’s bench and the common pleas. It was presided over by a chief buroii and four puisne barons. It was originally the king’s treasury, and was charged with keeping the king’s accounts and collecting the royal revenues. But pleas between subject and subject were anciently heard there, until this was forbidden by the Articula super (1290,) after which its jurisdiction as a court only extended to revenue cases arising out of the nonpayment or withholding of debts to the crown. But the privilege of suing and being sued in this court was extended to the king’s accountants, and later, by the use of a convenient fiction to the effect that the plaintiff was the king’s debtor or accountant, the court was thrown open to all suitors in personal actions.

The Court of Common Pleas: English court of law that originated from Henry II’sassignment in 1178 of five members of his council to hear pleas (civil disputes between individuals), as distinguished from litigation to which the crown was a party. This group of councillors did not immediately emerge as a body distinct and separate from the Curia Regis (King’s Court). It remained a part of that court and traveled with it until Magna Carta required that civil jurisdiction be assigned to a body convening at a designated place, at which time it settled in Westminster Hall. In 1223 the court began to maintain separate rolls, and in 1272 it acquired a chief justice.

During the later Middle Ages, Common Pleas was the most active though not the highest of the common-law courts; it included within its jurisdiction not only almost all civil litigation but also the supervision of local and manorial courts as well. Its judgments, however, were subject to review by the Court of King’s (Queen’s) Bench.

The Court of King's Bench: King’s Bench was so called because it descended from the English court held coram rege (“before the monarch”) and thus traveled wherever the king went. King’s Bench heard cases that concerned the sovereign or cases affecting great persons privileged to be tried only before him. It could also correct the errors and defaults of all other courts, and, after the close of the civil wars of Henry III’s reign (1216–72), it mainly tried criminal or quasi-criminal cases. In 1268 it obtained its own chief justice, but only very gradually did it lose its close connections with the king and become a separate court of common law.

The Court of King’s Bench exercised a supreme and general jurisdiction over criminal and civil cases as well as special jurisdiction over the other superior common-law courts until 1830, at which time the Court of Exchequer Chamber became the court of appeal from the three superior common-law courts.

DROIT COMPARE AMERICAIN – MESQ – 2017 / 2018

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Fundamental characteristics of Common Law:

1. Customary law (loi coutumière)

2. Rule of precedent (stare decisis - “let the decision stand” = the decision must be respected and everyone must follow it): it was the king who decided which law to apply and everyone had to respect that decision and everyone must follow it. The only person who may change his mind is the king himself.

3. Case law: law should be applied case by case. If you have a similar case you have to follow the precedent. There are differences between the precedent case and the actual case, you can distinguish to give a different solution.

Ex: a wolf ate a baby, which belonged to an import man. There was a similar case from India where a tiger ate a baby. The defendant said that the plaintiff is quite mad, because there is a difference between a tiger and a wolf. The case was lost.

4. Body of rules by Bracton who wrote the “De legibus et consuetudinibus Angliae” (On the Laws and Customs of England), which the noted legal historian F.W. Maitland described as "the crown and flower of English jurisprudence." The work (commonly known now simply as Bracton) attempts to describe rationally the whole of English law, a task that was not again undertaken until Blackstone's Commentaries on the Laws of England in the eighteenth century. The work is remarkable both for its wealth of detail and for its attempts to make sense out of English law largely in terms of the ius commune, the combination of Roman and canon law that was taught in the universities in Bracton's time.

5. Equity is used to correct common law defects and mitigate its harshness. It can be used for all classes of people unlike the common law. The law was very technical in common law and if there was error in the formalities the person making the claim would lose the case. In this case, equity rewards the claimants better. The only remedy that common law could give was ‘damages’ – that is an order that the defendant pay a sum of money to the claimant by way of compensation. The chancellor also developed new remedies which were able to compensate the appellatives more fully than the common law remedy of damages. The main equitable remedies were injunctions, specific performance, rescission, rectification. Equity is not a complete system of law, it merely fills the gaps of common law and soften the strict rules of common law

In English Law, Equity means that body of rules originally enforced only by the Court of Chancery. It is a supplement on the common law filling in the gaps and making English legal system more complete. By the end of the XVth century, the Chancellor had set up a separate court which dealt with petitions for relief. The Chancellor was not bound by the writ system or the technical and formal rules of common law, and considered petitions on the basis of conscience and right. The King James I sought the views of Sir Thomas Bacon who advised

« Where common law and equity conflict, equity should prevail ». However, equity was unpredictable and the relief granted by one Chancellor might be refused by his successor. With the adoption of the system of precedent, equity became intelligible and predictable.

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