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Legal Systems And Methods

Analysis of Common Law system

Introduction to Legal Systems And Methods

The Common Law system is typically followed by the British countries and former British colonies. The significant features of the common law system are in the facts and laws in it. This law does not have any written constitution or codified laws, this is mainly defined by the judges, courts and tribunals on the basis of individual cases but those decisions have precedential effect on the future cases of similar kind. For a current case if the court finds any similar dispute from the previous case than the court have to follow the previous case reasoning. The decisions of the court can only be reversed by that same court only or by legalization. There is extensive freedom of the contract as there are few that are impelled into the contract by law as per the decisions made in the previous cases. The most significant feature of this Common Law system is that everything is permitted in the case which is not prohibited by the law so the clients can use any document or proof to win the case under common law. This law is very much useful in this kind of out of the book cases because there also the justice will be served by the court. Or in case of any new case the court will justify the facts and importance of law in order tom serve justice because the law should be same for any personnel.

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Factual situations create legal disputes and it is extremely important to understand the distinction between law and fact in common law jurisdictions. In legal terms, fact is the event due to which litigation arises, on the other hand, the actual rules that determines how the courts will view facts is referred as law. The common Law mainly focuses on the facts and the decisions given or laws used in previous cases. The facts have a huge role to play in case of this common law because that determines the judgment of the case. The common law system is less perspective than any other law system because there is no hard coded laws or rules. Under common law systems, actual events of a case are focused in the question of facts which maybe examined by jury.

These issues are material to the outcome of the case and requires interpreting the conflicting views that surround the case on factual circumstances. Whereas, the legal principles and rules that a judge determines and the jury applies to the fact is covered under question of law. For example – the question whether the total compensation of taxpayer is reasonable in amount and whether entertainment expenses can be deducted by taxpayer arre the issues related to the question of facts and question of law. The former is a question of fact as one cannot determine whether compensation is reasonable by consulting tax law. But the later question i.e. whether expenses is deductible requires knowledge of tax law. The government can wish to preserve the rights of its citizens in specific legalization of any law under the common law in specific legalization to the infrastructure program being anticipated. For example, the government can implement a new law to prevent the service providers from cutting the water or electricity services to the consumers for bad payment. For equal bargaining provisions, some legal requirements can be implied upon for one party to have much stronger position than the other. If there is any contract made under the Common Law System there need to have some provisions and those terms need to govern the relationship between the parties in a contract list

Case 1: Thoburn vs Sunderland City Council case

Facts and their significance accordiong to legislation

There were several statutory instruments aimed at harmonizing the application of the European community of units. Despite of the Weights and Measures Act 1985, this particular act was provisioned depending upon the sections 2(2) and (4) of European Communities Act 1972. The Thoburn and Sunderland City council case is also known as the “Metric Martyrs” case. This case took place in the year 2001 which was a UK Constitutional Administrative case regarding the interaction of EU law and Act of Parliament. In the United Kingdom both pound and kilogram are legal equally as the units of measurements as per the Weights and Measures law Act 1985. But in 1995 an order was passed that the use of pound as primary unit of measurement for trade purposes in UK will be illegal after the year 1999 and would be judged as a criminal offence and traders have to use apparatus thereafter for the metric scale of measurements. The Units of Measures Act 1994 was announced on the basis of European Communities Act 1972, this is called as the Henry VIII clause. In march2001, Steve Thoburn, a greengrocer, was arrested and presented at the Sunderland Magistrates Court for using illegal weighing apparatus which is banned by the law. Colin Hunt, a fruit seller, Julian Harman, a greengrocer and John Dove, a fishmonger were also convicted under the same law in the UK at the same time. All the convicts first claimed that the kilogram and pound both are legal measuring units as per the UK law of Weights and Measures. The appellants argued that in case of the Goodwin vs Philips case in Australian High Court, the court judged that relying on the persuasive precedent that repeal could work to carve out an exception because its operation areas are unaffected by the later stature. They also appealed that a consolidation statute can work as an implied repeal on the basis of the authority from the court of appeal and divisional court. They also argued on the basis of the case of Warner’s case in 1661 that implied repeal had been applied in those cases but the Attorney-General did not argue that and that were not the binding authority. The convicts also appealed that concerning the public international law the EU law cannot be implied without the knowledge of the constitutional principle of the parliament of any European country. In this argument they made the laws of EU to draw a constitutional framework within which the principle and rules of Parliament and EU supremacy can be accommodated at the same time. As the member of European Union the United Kingdom Parliament is free to create and repeal any law made by the EU law system.

Judgment

The decision was made against all the five appellants named as “Metric Martyrs” where the case was referred to the Queen’s Bench Division. But when the decisions were made according to the High Court, all the appellants debated that both Kilogram and Pound were recognized as equally legal units. In the judgment of the court Lord Justice John Laws given his judgement against the Thoburn and the judge also stated that the argument was correct that as per the Weight and measure act the imperial and metric system can be operated side by side. He also accepted that the Australian case was related to the case of England and therefore the relationship between community and national law have to be judged on the reference of the national law. He went on to hold with his decision because there was huge inconsistency between the European Communities act and the Weights and Measures Act. That is why the constitutional framework for the EU supremacy was needed.

Critical analysis

It is evident from the case that in the common law, the case examples and the circumstances are given precedence in determining which law is to be applied which is based on the previous cases where similar arguments were made. Therefore, the application law in the case was determines by previous case of Goodwin but the application the relevant statute found the law to be applicable in the case. So the facts presented in the case over ridden the precedence of the application of the law and thus, this case is important for its recognition of supremacy of EU laws and considers law more relevant than the facts of the case.

Case 2: Council of Civil Service Union vs Minister for the Civil Service

Facts and their significance accordiong to legislation


The Council of Civil Service Union vs Minister for the Civil Service was also known as the GCHQ case which was an English Administrative Law and UK Labor Law case. In the year 1984 the Government of UK under Margaret Thatcher decided that any employee who is working in any Government Communications Headquarters would not be allowed to be a part of any trade union for the national security reasons. This was passed through an order in council which was an exercise of the Royal Prerogative. Then the Council of Civil Service Union went to the court with this issue. First to the high court, then to the Court of Appeal and finally to the House of Lords.

The Government Communications Headquarters (GCHQ) is a British Intelligence agency which gives service to the government about illegal intelligence news to the armed forces. Due to a scandal on 1984 the common people of UK came to know about this intelligence organization so for that reason the government of Margaret Thatcher decided to implement this law which will prevent the employees from interacting with other union members. As the result of this order the Council of Civil Service Union thought that the judicial review was the only available route. The ban of the GCHQ workers was imposed in a following meeting of select group of minister and prime minister rather than presence and acceptance of the full cabinet. The council gone on to arrange several publicity campaigns but the government refused to reverse their decision. The trade union also said that the employees’ membership fees was a huge amount that would not be refunded. But nothing was unable to change the decisions of the government.

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Judgement

The House of Lords overturned the decision of the high court’s appeal of reasoning and stated that the Royal Prerogative was subject to judicial review, in a similar way to statutory actions. The court said that the ban on the workers of the GCHQ was made in presence to some ministers and Prime minister rather than the presence of the full cabinet which was a very questionable decision. That could not be maintained if the Royal Prerogative would unable to answer properly about their decisions. But all the lords in the house agreed that from the national security reason point of view the decision is justified. The House of Lords have no power to overturn the issue of the national securities. They stated that the process of implementing the rule was unusual. The house will not argue with the national security reason but the implication of the rule impacted upon the private rights of people which is amenable to review under the civil rights of common people. The court was unwilling to subject prerogative powers to judicial review. But the House of Lords have the power and authority to ask for judicial review.

Critical analysis

The GCHQ case was highly significant because depending on the powers of the government except the cases of national securities, all other cases were subjected to judicial review about the justifications of those decisions. This case determined that the issues with the National Securities may be a hugely highlighted political issue but never been a legal one because that is out of the authority of the court and rightfully so. The House of Lords came to an unanimously decision that if the orders of the council is subjected to violate the ‘primary legislation’ in the Human Rights Act then it is subjected to judicial review. Therefore, the precedence of the facts in the common law and the specific circumstances are enforced by this decision as the specific legislations and their applicability is given to the judicial committee to decide which emphasizes the significance of the common law. The importance of this specific case is high as this can be used in future cases as a guide for the application of judicial review about the applicability of the relevant legislation. In the above case, it can be seen that national security is not a legal issue but a political one and hence, cannot be determined by court and facts are of more relevance in common law.

Conclusion

From the above discussion about the common law system it is clear that the procedure and implication methods of the law system. The distinction of this law with the other law systems is clear from the report. The procedure of this law system and the getting result out of it is very interesting where there is no hard coded rule books for this system. The decisions and judgements depends on the previous case results and if the matter is new then in judgement depends on the interest for the society and common people. The law and facts have a great significance in the decision making in the common law system. Sometimes it also depends on the merit and legality of the case. In case of the Council of Civil Service Union vs Ministry for the Civil Service, the House of Lords gave their verdict on the merit of the case and on the legality of the system. Where the order of Royal Prerogative had to give proper justification as the order is affecting the private rights of the common man. The national securities were out of judgment but for the civil rights, they had to give judicial review. In the case between the Thoburn vs Sunderland City Council case the court had given punishments to the offenders but the conditions of the government and the European Community was questioned which led to a new framework for the government and EU law.

References

  • Allan H, Quaglia C and Grubits S,Fire Safety Engineering And The Approving Authorities(1st edn, CSIRO Division of Building, Construction and Engineering 2011)
  • Buckland W and McNair A,Roman Law And Common Law(1st edn, Cambridge University Press 2011)
  • Burrows A,A Restatement Of The English Law Of Unjust Enrichment(1st edn, Oxford University Press 2012)
  • Crown Proceedings Act 1947(1st edn, TSO 2012)
  • Davis J,Medieval Market Morality(1st edn, Cambridge University Press 2012)
 

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