Common Law as a Legal System

COMMON LAW AS A LEGAL SYSTEM

Common Law and Civil Law

When defined in this way the term ¡§common law¡¨ is used to refer to a type of legal system called the common law legal system. The legal systems of various countries are modeled on the English legal system and these countries are said to have a ¡§common law legal system¡¨. This includes most of the British Commonwealth and the United States. The common law legal system involves such matters as trial by jury, presumption of innocence etc. The term also denotes the fact that these said countries would have ¡§received¡¨ the English common law when they were colonized or otherwise conquered by the British Empire.

The term civil law in this context also refers to a type of legal system. Civil law countries are those countries which have legal systems or procedures modeled on the Continental European system of law. Certain Caribbean countries have a mixed common law and civil law system because of their histories. Two of these are St. Lucia which has aspects of the French Civil Code and Guyana which has remnants of Roman Dutch law.
COMMON LAW AS A SOURCE OF LAW

Common Law and Statute Law
Common law as a source of law refers to the body substantive law developed by the court over time in the decisions of various cases. This definition is based on a system of precedent which will be discussed later. Before discussing the system of precedent, it is necessary to look at the development of the English Court system. Precedent or common law in this context is also referred to case law i. e. law that developed from actual court cases.

In its early history, the English Court system involved a number of courts. These were the Curia Regis, the Court of Exchequer, the Court of King¡¦s Bench, the Court of Common Pleas, and the Court of Chancery (discussed earlier).

The Curia Regis
The development of the English Common law court system began with the Curia Regis, the king's feudal council to which he summoned his tenants in chief (persons who rented lands directly from the King), the great barons, and the great prelates (bishops). The Curia Regis was introduced into England by William the Conqueror. The Curia Regis, more commonly called the great council, had only quasi-legislative powers but was primarily a judicial and executive body. Originally, the King was the fount of all justice but gradually, the power to adjudicate in disputes including those in which the king had an interest were delegated to members of the Curia Regis, particularly those schooled in the law. From that delegated authority, certain specialized courts developed.

Court of King¡¦s Bench
The Court of King¡¦s Bench was the highest court of law in England in the middle Ages. It grew directly out of the Curia Regis. Originally, it was the principal court for criminal cases, and the place to hear disputes between the citizens and the King. It gradually became a civil court also, serving as an appellate court that had the jurisdiction to uphold or overturn judgments made in the Court of Common Pleas.

The Court of Common Pleas
This was a royal court applying Common Law to judge civil disputes.
It was called "common pleas" to denote suits not involving the King.
It sat in Westminster Hall from the early thirteenth century onwards. Nearly all civil suits were within its jurisdiction, and it also had jurisdiction over local courts. The Court of Common Pleas was the chief creator of Common Law precedents. The appellate court for its decisions was the Court of King's Bench. The Court of Common Pleas was merged into the High Court by the Supreme Court of Judicature Acts 1873-75.

The Court of Exchequer
This court originated after the Norman Conquest as a financial committee of the Curia Regis. Within a hundred years it had a separate organization and was responsible for the collection of the king's revenue as well as for exercising jurisdiction in cases affecting the revenue.

Over time, its jurisdiction over common civil matters steadily increased, to include money disputes between private litigants. This was made possible by the creation of a legal fiction that assumed that the plaintiff was indebted to the Crown and needed payment from the defendant to enable him to pay the king.

Statute Law ¡V is law that is written down and passed by both houses of Parliament. Statutes are also called legislation. That which is enacted in Parliament becomes the law of the country. Statutes while being a category of law are also a source of law.

STATUE LAW AS A SOURCE OF LAW

Parliament is given responsibility by the constitution to make laws for the peace order and good government of the country. It may repeal earlier laws, overrule laws developed in the courts or make new laws on subjects which are not regulated by existing ones;

Legislation is binding on judges who must apply relevant legislation however distasteful they may personally find it. However, judges have to interpret legislation and they may find a meaning in a statutory rule which Parliament did not intend. In practice, Parliament usually follows certain presumptions which serve to limit its freedom to make laws. Parliament does not, for example, usually enact statute law with retrospective effect or deprive citizens of their property without compensation. In addition to making new laws and altering existing ones, Parliament may make the law clearer by passing a codifying statute to put case law on a statutory basis, or by making a consolidating statute to incorporate an original statue and its successive amendments into a single statue.

There is a procedure for passing legislation and it usually begins with the preparation of a Government Green Paper. (A Green Paper contains ideas about a particular subject that is published by a government so that people can discuss them before any decisions are made.) The Green paper is disseminated to societal interest groups. Once comments on the green paper are received, a White Paper is produced which sets out the aim of the legislation. (In other words, a White Paper reports the policy of a government on a particular subject.) The material in the white paper is then put forward in the form of a draft statute called a bill, and is introduced in the lower house of Parliament which is the House of Assembly. Later, it is introduced into the upper house of Parliament called the Senate (or its equivalent). That is, a bill must be passed by the two Houses of Parliament. The procedures given below are followed in each of the two Houses:
„X There is a first reading of the bill whereby it is published and introduced into the agenda. At this stage, no debate is entertained;
„X This is followed by a second reading during which there is debate on the general merits of the bill. No amendments are made at this stage.
„X The third stage is the committee reading where the bill is examined by a Standing Committee of members, representing the main parties and specialists in the relevant subjects. The bill is usually examined section by section and may be amended, as appropriate. (If the bill is a very important one, all or part of the committee reading stage may be taken over by the entire House sitting as the committee);
„X The fourth stage in the reporting of the bill. The bill, as amended in the committee reading stage, is reported to the full House for approval. (If the government has undertaken in the committee reading stage to reconsider various part of the bill, it often puts forward its final amendments at this stage);
„X The final stage is the third reading. This is the approval stage at which only verbal amendments may be made.

After it is passed in both Houses, it is submitted for the Assent of the Head of State who in the case of Barbados is the Governor General. Once the bill is assented to, it becomes an Act of Parliament (or Statute). The Act comes into effect at the start of the day on which assent is given, or if the Act itself so provides, on a set commencement date.

Delegated Legislation
To save time in Parliament, it is usual to set out the main principles of the Act in the body thereof as numbered sections, and to relegate the finer details to schedules at the end of the Act. Generally, there will not be any debate on these schedules but they take effect as part of the Act. But even with this provision (i.e., of making sections and schedules), there is a great deal which cannot conveniently be included in the Act. For example, at times, after an Act has been passed, governments still have to consult interested parties and then produce regulation, having the force of the law, to implement the Act, to fix commencement dates to bring the Act into operation or to prescribe printed forms for use in connection with it. To circumvent these and other matters, the present day Acts usually contain a special section which empowers a minister or a public body such as a local authority, to make subordinate or delegated legislation for certain specified purposes.

Pieces of delegated legislation are called statutory instruments and include rules, regulations, orders, proclamation and gazette notices.

N.B. The power to make delegated legislation comes from the principal Act.

This necessity for delegated legislation is unavoidable for many reasons, including the fact that:-

„X Parliament may not have sufficient time to examine matters of detail;
„X Much of the content of delegated legislation may be technical, and therefore in better worked out in consultation with professional, commercial or industrial groups outside Parliament;
„X If new or altered regulations are required later, they can be issued in a much shorter time than in needed to pass an amending Act.

Despite the fact that delegated legislation is not directly made by Parliament, Parliament exercises some control over delegated legislation. This is done by restricting and defining the power to make rules and by keeping the making of new delegated legislation under constant review. In addition, some statutory instruments do not take effect until approved by an affirmative resolution of Parliament. Finally, most of the statutory instruments must be placed or tabled in Parliament before they take effect. During that period members may proposed a negative resolution to veto a statutory instrument to which they object. For instance, the standing scrutiny committees of both Houses examine statutory instruments with a view to raising objections, if necessary, usually on the grounds that the instrument is obscure, expensive or retrospective.

As explained previously, the power to make delegated legislation is defined within the Act which confers those powers. Notwithstanding, a statutory instrument can be challenged in the courts on the ground that it is ultra vires (that is, that it is outside the power conferred by the principal Act) or on the ground that is has been made without due compliance with the correct procedure. If the objection is valid, the court declares the statutory instrument to be void.