Common law

The common law (common law) is a system built primarily on the jurisprudential right in opposition to the right common lawyer or codified.

It is a design of English origin which marks the preeminence of the decisions of the courts, the Jurisprudence. It is in force with the United Kingdom (except in Scotland where the right mixed because is influenced by the Latin model), in Ireland, with the Canada (except with the Quebec, which uses a mixed duty), with the the United States (except in Louisiana, California (of origin) and Puerto Rico) and generally in the countries of the the Commonwealth.

In the countries of Roman tradition where one speaks about romano-Germanic Droit, it is the legislative principle which dominates, organized in the form of codes the Civil code following the example of French.

The term common law is not easily translatable in French, although the origin of this word comes from former common French “ley”. “Common Right” would let suppose that there exist courses of exception, whereas the legal decisions of the chancellery (Equity) only come to supplement the common law . “Common law” would imply that it is only about one verbal right, resulting from the tradition. Lastly, “jurisprudential right” would be insufficient since the common law is also based on the laws voted by the Parliament.

History

The history of the English Droit starts when William the Conqueror is crowned King d' Angleterre. Starting from this date, the new kings of England will give to itinerant judges the mission of transcribing certain edicts. These itinerant judges, sent by the king, gradually will work out a uniform common jurisprudence on the whole of England; it is from there that the system comes from the common law . As from the 13th century, the common law becomes too strict and too rigid, moreover, it does not bring a solution to certain litigations. The itinerant judges then started to seize the king via his chancellor to ask him to rule in equity. The chancellor will work out new rules on this occasion which will be more modern and more in connection with the encountered problems that those of the common law . Thereafter, from the jurisdictions of equity will be installation parallel to jurisdictions which will apply the common law . These two systems will approach thereafter.

The common law is taught as of 1755 with the Université of Oxford by William Blackstone.

Common Law and Equity

If the distinction between course of common law and course observing the rules of the equity (equity) were abolished by the Judicature Acts of 1873 and 1875, the two concepts remain at the base of the English right.

The common law was elaborate 11th at the 15th century. This right “common” to England gradually supplanted the local habits thanks to the action of the courses royal ( Curia governed ). Right created by the judges and not by the law, the common law gives the primacy to the jurisprudential precedents. However, after the 16th century, the common law solidified in rules difficult to modify, the judges being bound by the Jurisprudence.

This is why, under the impulse of the Chancellor, the rules of the equity developed, which sets up a new parallel jurisdiction. These rules, based on the principles of Justice and equity, make it possible to mitigate the insufficiencies of the common law and its rigidities. Thus, the common law makes it possible to grant damages part injured by the inexecution of a Contrat. If the plaintiff does not wish a monetary repair, but prefers that its contracting is forced to carry out its contract, it must make an action in equity. The procedures in equity were simpler than in the common law , very attached to the rites.

Today the two concepts perdurent in English right. Certain judges rule according to the procedure of the common law , others according to that of the equity . It is thus advisable, when one wishes to launch an action, to determine in which branch of the right one is: the distinction between common law and equity is thus as important to include/understand in English right as the distinction between public Droit and Civil law in French right. The matters were distributed little by little between the two branches according to the desired type of solution, but also of the most adequate, oral procedure in a case, written in the other.

Anecdote

This system is constant in France by a minority part of the doctrines of which Alphonse Richard, Bernard Bichat or Pierre-Nicolas Hergott. But it would seem that strong legislative predominance bars for the moment the road with this theory.

External bonds

  • '' Langage of the right and '' translation, the Council of the French language, Quebec, 1982.
  • Peter Messitte, “comparative Examination of the common law and the romano-Germanic legal system” in electronic Review of the Department off Justice, the United States, 1999.
  • legal systems in the world (coming from the Web site of the Faculty of Law of the University of Ottawa)
  • Mixed Jurisdictions: Common Law vs. Civil Law , Prof William Tetley, 1999, McGill University,

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