Rightful Liberty

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” [Thomas Jefferson]

‘The common law can first of all be understood as the law imposed on the institutions of Anglo Saxon England by the Norman invaders in 1066. So ‘the common law’ begins to take sense in that it is the law that relates to everyone. Not just the people in Mercy or Wessex, or wherever these distinctions between these Anglo-Saxon jurisdictions lay. Over time “the common law” becomes used to denote the law replied by the courts the kings court as developed through the system of precedent.’

“Common law is used to describe all those rules of law that have evolved through court cases (as opposed to those which have emerged from Parliament) over the past 800 years. Despite the growth of statute, English law is still generally understood in common law terms.” (Holland and Webb 2016, p. 14)

‘Roman law had an important influence on the common law. This is another massive historical question and, of course, Roman law has a major influence on most civilian legal systems that one finds throughout the world today.

There are important commentaries written on the common law in the medieval period. Henry Debracton for instance, writing in 1235. However, Sir William Blackstone (1723 to 1780) is another major point of reference.

Blackstone was a Justice of the Court of the King’s Bench, one of the common law courts at the time, and a commentator on the common law. He wrote one of the most influential and systematic studies of the common law, Blackstone’s Commentaries on the Laws of England, between 1765 and 1769. This text describes the common law as an unwritten law, in contrast with the written law of statutes or codes. Blackstone presented the common law as a form of oral tradition, derived from general customs, principles and rules handed down from generation to generation by the court lawyers and judges, who participated in the common life or in the common life of lawyers in the ends of courts to which they all belonged. Eventually, this old tradition was reflecting the reports of decision or at least the reports of the more important courts, and this knowledge was stored in written form, nanamely the Law or Case Reports. Now it is important to bear in mind that there was no organised system of court report until the late 19th century. And prior to that, all reports were really reported by private initiatives. The key point to bear in mind here is that common law is linked to archives, to case reports. To be a common lawyer, is to know your cases, is to know how the law develops through cases. Historically, the common law tradition has always placed the judiciary, the judge, at the center of things. Judicial decisions are seen as constituting the written law, a body of maxims, precedents, ported decisions that constantly need to be rationalised and developed into a coherent system.’

“English law was regarded as bastard law – technically speaking – law without a father. It evolved through hundreds and thousands of decisions in the resolution of practical cases, and out of these hundreds of thousands of decisions, some were written down. And when they were written down, they were reconciled by judges sitting in the ins of courts, discussing for a long time. The decision making was very much an oral tradition. And then as a law reporting came along, being written in the lower portraits with very variable quality indeed. With those records judges of appeal were being able to look through the principles that were held out as a reasoning for the decision – trying to work out whether these principles were rational, consistent, and whether they actually justify the practical outcome.”

‘The next point relates to Acts of Parliament, also known as statutes or legislation. There are two sources of law for a common lawyer, the common law itself and Acts of Parliament. Although the common law is judge made and case law remains a source of law, influential legal reformers active in the early 1800s were critical of what they saw as the incoherent nature of case law. They drew on traditions of British political thinking that focused on the importance of sovereign power rather than the law-making power of the judge. In particular, Thomas Hobbes’ book Leviathan (1660), provided an important reference point.

Hobbes argued that there should be one single source of sovereign power in a nation. Political events allowed this source of power to be associated with parliament. In the influence of other radical thinkers like Jeremy Bentham (1748 to 1832) and John Austin (1790 to 1859) what was known as ‘the positivists approach to law’ further developed. The positivists stressed the importance of a coherent logical analysis of the law. Bentham pushed forward various reform projects that were designed to give the law a single informic philosophy. Bentham disliked the old-fashioned nature of the common law, like you can get to a crumbling gothic mansion. Law had to become modern and be linked to the rational government of a country. By the late 19th century, Statutes, or Acts of Parliament, had become a major source of law in England and Wales. The state took on increasing responsibility for economic management and social regulation. The volume of statute law continued to grow. While Bentham might not have agreed with the growth of state power and certainly did not anticipate the welfare state of the late 20th Century, it would certainly be fair to say that the social and economic policy required a great deal of legislation.

According to Heart (1961) two rules of recognition allow us to specify the sources of UK law: cases and statutes. Statutes are the supreme source of law, a fact that recognises the sovereignty of parliament. This element of law reflects the legitimacy of parliament. Judges have a law making power to develop the rules of the common law. However, although this power is subordinate to parliament it should properly be seen as a law making power. The development of the common law is guided by the doctrine of precedent. This means that cases that are judged to be similar are decided in the same way. In order to understand what judges are doing, we need to see judicial reasoning as a process, a structure, as a way of thinking that allows the common law to develop coherently. It also limits judicial lawmaking because one has to remember that although judges have a lawmaking power, it is subordinate to that of parliament.’

London Tramways v London City Council is a case from 1898 that shows how the judges understood the role of the court at the end of the nineteenth century. Lord Halsbury had a very particular vision of how the House of Lords had to approach cases. He argued that:

“ I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience…of having each question subject to being re-argued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth there is no final court of appeal. My Lords, “interest rei publicae” is that there should be “finis litium” sometime and there can be no finis litium if it were possible to suggest in each case that it might be re-argued because it is “not an ordinary case” whatever that may mean.”

‘Unlike most nations, Britain does not have a single document that forms its constitution, though it is often referred to the fact that Britain has an unwritten constitution. One of its central ideas is that parliament is sovereign. This means that parliament can make or repeal any law that it likes. It can over rule parts of the common law. It can overrule earlier statutes. This is true then of the Human Rights Act and the European Communities Act. The European Communities Act that makes effectively the United Kingdom part of the European Union, and the Human Rights Act that makes the law of European Human Rights part of the common law of the United Kingdom.’

[Professor Adam Gearey in an introduction to common law – unless otherwise indicated by quotes]

“It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy.” [Norway Plains Co v Boston & Maine Railroad (1845, 1 Gray, at 263)]

It is therefore its greatest advantage that the common law consists of broad principles drawn from reason, natural justice and public policy that can be flexibly applied. In a case called Bulmer v Bollinger, Lord Denning comes up with a very striking metaphor: That the law of the EU is like a tide flowing up the estuaries, flowing into Britain and mingling with the rivers of the common law to produce a single body of law. There has always been an interchange between the United Kingdom and the Continent, and that is true in the 1100s, the 1200s, and in 2016. And if we go way back, then we find that the common route is Roman law.

Comments (19)

  1. The Editor (Post author)
    “In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so.”

    [Immanuel Kant]

    Immanuel Kant by YairMor Digital Art, Drawings & Paintings, People, Portraits ? 2011-2018 YairMor

  2. The Editor

    Sovereignty of Parliament

    A major text in English jurisprudence or political philosophy is H.L.A. Hart’s “The Concept of Law” (1961) where he uses a general idea how the sovereignty of parliament can be understood. Hart’s idea of what lies behind a legal system is a rule of recognition. A rule that allows us to say: here are the rules of the legal system – as opposed to any other system, social or economic, that also makes use of rules. According to Hart’s interpretation, behind recognition lies the idea of the crown and parliament. Or in other words, parliamentary sovereignty. This idea that the rule of recognition allows us to identify the rules of the legal system and also point at the supreme law making power in the constitution. Hart’s notion of the rule of recognition allows us to say: here are the rules of the legal system and here is the fundamental rule of the legal system itself. In other words, the rule that relates to the ultimate lawmaking power in a state.

    One of the major writers on the British Constitution is A.V. Dicey. He is most widely known as the author of “Introduction to the Study of the Law of the Constitution” (1885). The principles it expounds are considered part of the uncodified British constitution and say that parliamentary sovereignty is described through three rules:

    1. Parliament is the supreme lawmaking body and may enact laws on any subject matter
    2. One of the problems here is that parliament sounds tyrannical. It can change any law that it likes and there is nobody that can stop it. L. Wolf-Phillips (1972) gave a particularly pointed way of thinking this problem through. He asked if parliament could pass a law condemning all blue eyed babies to death? The answer that Phillips comes up with, and this comes back to Dicey, is both yes and no. If we are saying that parliament is sovereign and parliament can change any law that it likes and that there is nobody that can overrule parliament, then it would certainly follow from that that parliament can make a law murdering blue-eyed babies or any of these things which would strike us as horrific. Will parliament do this? This is a different question. Parliament wouldn’t do this because of the realities of politics.
      There is a distinction between legal and political sovereignty. As far as the political sovereignty of parliament is concerned, it is limited. It is limited by the democratic accountability of parliament to the people. Parliament is not politically absolute. It is politically limited throughout the period of a government, and it is ultimately accountable to the people when there is a general election. It is limited by its accountability to the people. And also perhaps to the general rules, practices, conventions, and understandings that have themselves grown up in politics – by the politically possible. Could a parliament legally create a statute that abolishes private ownership of motor vehicles? Yes, it could. Would it do that? It would be political suicide, the end of that government. And that gives a fairly good understanding of the dynamic of parliamentary sovereignty.

    3. No parliament may be bound by a predecessor or bind a successor
    4. No parliament can create an act that is binding on a future parliament, and no parliament is compelled to follow an act laid down by an earlier parliament. In terms of strict legal theory, this is the continuing theory of parliamentary sovereignty. This rather technical term is explained by Ian Loveland (2015) that the sovereign parliament is a perpetual institution, its unconfined legislative power is created every time it meets – irrespective of what previous parliaments have enacted.
      Politically, that takes us back to the previous question. Would a parliament be bound by referendum passed by an earlier parliament? Legally that later parliament can change its mind. It is not bound by that referendum. Politically, whether or not the government would want to do that, is another question.

    5. No person or body, including a court of law, may question the validity of parliament’s enactments
    6. Dicey’s third rule that relates to parliamentary sovereignty is the idea that no court effectively may question the validity of parliament’s enactments. In opposite to Germany for example, no British court has the power to strike down an Act of Parliament – the power to declare that an act is null or void by reference to the constitution. That is not the case in the United Kingdom. Although there is a supreme court, it cannot strike down acts of parliament. That would be a constitutional revolution.

  3. The Editor (Post author)

    Ex Ante and Ex Post

    Ex Ante and Ex Post mean respectively from before and from after. The Ex Ante and Ex Post perspectives are always defined with regard to some event that might occur or has occurred. Ex Post, we might be drawn to less harsh reactions. Since it is no longer possible to deter what already has occurred. Ex Ante, we might want to deter unauthorised immigration with the threat of punishment and deportation. Ex Post, we might prefer a path to citizenship.
    Jurys are placed in the Ex Post position. They are assembled to adjudicate what should happen to litigants after the supposed wrong has occurred. The quality of mercy more often resonates with the Ex Post perspective. In contrast, judges announce rules that govern as precedent future parties, as well as the current litigants before them. Judges are more likely to adopt rules that make sense from the Ex Ante perspective. For example, Ward Farnsworth (2007) uses an Illinois Supreme Court decision concerning a bank thief, who put a gun to the head of an innocent customer and demanded that a bank teller give the thief $5,000, or the thief would kill the customer. The teller refused, the thief executed the customer, and the customers estate sued the bank. The Ex Post perspective here focuses on the bank’s behaviour after the threat has been made. Given that a threat has occurred, Ex Post of the threat it seems unreasonable for the teller as the bank’s representative to refuse the demand. After all, a life is more valuable than $5,000. But the Illinois Supreme Court, in deciding the case in favour of the bank, took much more of an Ex Ante perspective. Looking at the policy ex Ante, the court reasoned “in this particular case, the result may appear to be harsh and unjust, but for the protection of future business invitees we cannot afford to extend to the criminal another weapon in his arsenal”.
    From the Ex Ante perspective, denying liability reduces the criminal arsenal, because future criminals cannot threaten to impose liability on banks by killing customers, if the banks refuse to give the robber money. Denying liability might deter future bank robberies, and thus protect future customers.
    Judges are unique in our legal system because their job focuses them to engage in a mixture of Ex Post and Ex Ante decision making, deciding the case before them, as well as, creating precedence that will influence the decision in future disputes. Indeed at times judges will announce rules that apply only to perspective disputes, meaning that they apply one rule to the litigants before them, and a different rule will apply to the future litigants.

    Legislators and regulators are positioned dominantly to propagate rules that will apply prospectively, and thus naturally are likely to take the Ex Ante perspective. Hence, legislators are attuned to Ex Ante deterrence arguments. But even here, legislators might pay attention to how stiff criminal penalties have led to high fiscal and social costs of mass incarceration. And even legislators might therefore take Ex Post considerations into account even when choosing prospective rules. In contractual settings, there is often more possibility of agreement Ex Ante.

  4. The Editor

    The Human Rights Act

    One of the reasons why Britain got the Human Rights Act in 1998, and not during the period of conservative government, is that this is a political activity. It is a political attempt to change the checks and balances in the British Constitution. Which reflects in part the political understanding that Parliament had become too powerful. That the risk within the constitution of a sovereign parliament is that there are insufficient checks and balances on that parliament. To the labour government’s understandig, political sovereignty, the fact that a government can be voted out, does not provide either sufficient limits on what parliament is doing or indeed allow thriving development of public culture. What lies behind the Human Rights Act is a political understanding of what was wrong with the constitution.
    One of the things that the courts can do with the Human Rights Act is to issue what is called a “declaration of incompatibility”. If a government act was in breach of convention obligations, the declaration of incompatibility would be an invitation to the relevant minister to consider this fact – to consider the fact that an act of parliament was in breach of European human rights. It doesn’t say that the minister has to change the law because that again would bring the end of parliament sovereignty. Therefore, it is an invitation to change the law – the minister may choose not to do so.
    Secondly, the Human Rights Act allows the courts to interpret British law in the context of the rulings of the European Court of Human Rights. This is giving the British courts the chance to develop human rights principles, to develop interpretations of the common law that are consistent with the European law of human rights. Humans rights protect citizens against powerful bodies within the constitution. The important point is that the Human Rights Act does not limit parliamentary sovereignty. It gives the judges more powers of interpretation to make human rights rulings, it allows the judges to issue declarations of incompatibility which invite a minister to consider the fact that an Act of Parliament is in breach of human rights obligations. But it does not give the power to strike down acts of the UK parliament. It is redressing some of the checks and balances of the constitution.

    The following quotation taken from the case called Jackson and the Attorney General highlights how Lord Steyn understands parliamentary sovereignty:

    “We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”
    (R (Jackson) v Attorney General [2005] UKHL 56)

    The Human Rights Act requires a constructive dialogue between national courts and the European Court of Human Rights. The Strasbourg court has the authority to pronounce on the convention in the correct interpretation of its principles. However, in its decisions on particular cases, the Strasbourg court allows a national court to develop and apply their own understanding of the law to the facts of the case. This means that a national court must decide precisely on how the convention applies, and how the principles elaborated in Strasbourg should be applied in the special context of national legislation. If the national courts have to apply convention jurisprudence or the rules of the European Court of Human Rights, then they must do so in the prevalent terms of the national legal system. Thus, as far as the UK is concerned, the ordinary rules of precedent should apply.
    (Leeds City Council v Price [2006] UKHL 10)
    (Kay v Lambeth London Borough Council [2006] 2 AC 465)

  5. The Editor (Post author)

    Normative vs. Positive

    The normative – positive dichotomy distinguishes between two different kinds of argumentation. This difference is sometimes referred to as the difference between is talk and ought talk. A normative claim is ought talk. A normative claim about the laws is captured by the classic plea “there ought to be a law!”. Normative debates are about what the content of the law should be.

    In contrast, positive analysis of law seeks to identify what the law is. Positive claims are hence capable of being correct or incorrect. It is a markedly different inquiry to ask “what is the speed limit?” than to ask “what should be the speed limit?”.

    Oliver Wendell Holmes, Jr. said in his book “The Common Law” (1881) that the life of the law has not been logic, it has been experience:

    “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly [2] corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.”

    That first line is maybe the most important single sentence in all of of American jurisprudence. While logic might help to derive certain positive claims, Holmes states that the positive content of legal rules could be identified by investigating how they were used in practice.

    The Scottish philosopher David Hume argued that no ought claim could be correctly inferred from a set of purely factual premises. This result is sometimes referred to as Hume’s Law, or the Is – Ought Problem. Hume found that there seems to be a significant difference between positive statements and prescriptive or normative statements, and that it is not obvious how one can coherently move from descriptive statements to prescriptive ones. You can only derive should claims from premises that include should claims.

    One way that Ian Ayres has papered over the normative motivations of his own analysis is by converting normative characterisations of what law should be into nominally positive claims about what people with certain normative predispositions would favor. Thus, instead of arguing that the law should adopt a particular rule that has efficiency-enhancing properties, Ayres intended to say instead that “efficiency-minded lawmakers would favor a particular rule”.

  6. The Editor

    The Doctrine of Precedent (Part 1)

    What characterises civil law is a binding code. Precedents in civil law tend to be illustrative and not binding on that code, because the code is binding. In common law, precedents are themselves binding, because there is no code.

    So there are two key features of the doctrine of precedent. Firstly, the precedent of binding. If a case that judges are trying to decide is considered sufficiently alike in law to an earlier ruling in a precedent case, then the instant case is bound by the ruling in the precedent case.

    The second feature is the hierarchy of courts. The rule of thumb is that the courts superior in the hierarchy bind the courts inferior to them in the hierarchy. In practice, precedents are determined by the Courts of Appeals, civil and criminal, and the House of Lords, or the Supreme Court.

    The Palace of Westminster

    “At present the English doctrine of precedent is to some extent in a state of flux, but there appear to be three constant features. These are the respect ratio paid to a single decision of a superior court, the fact that a decision of such a court is a persuasive precedent even so far as courts above that from which it emanates are concerned, and the fact that a single decision is always binding precedent as regards courts below that form which it emanated.”
    (Cross, R. and Harris, J.W. (1991) Precedent in English Law, New York, Oxford University Press)

    On the one hand, the extent to which a superior court can depart from its own previous rulings – in exceptional circumstances – relates to the development of the flexibility of the common law. On the other hand, in a case called London Tramways and London City Council from 1898 Earl of Halsbury is arguing about a particular vision of how the House of Lords should work:

    “My Lords, it is totally impossible, as it appears to me, to disregard the whole current of authority upon this subject, and to suppose that what some people call an ‘extraordinary case,’ an ‘unusual case,’ a case somewhat different from the common, in the opinion of each litigant in turn, is sufficient to justify the rehearing and rearguing before the final Court of Appeal of a question which has been already decided. Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice as compared with the inconvenience – the disastrous inconvenience – of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal? My Lords, ‘interest rei public?’ that there should be ‘finis litium’ at some time, and there could be no ‘finis litium’ if it were possible to suggest in each case that it might be reargued, because it is “not an ordinary case,” whatever that may mean. Under these circumstances I am of opinion that we ought not to allow this question to be reargued.”
    (London Street Tramways Co Ltd v London County Council [1898] AC 375)

    In Lord Halsbury’s vision, the fact that a case might have been wrongly decided is not the most important consideration. The most important consideration is that there should be finality in law (finis litium). This has led to the view that House of Lords decisions regarding questions of law could not be overruled except by an Act of Parliament (Cross, 1991). The modern view, defined by the 1966 practice statement, states that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law:

    “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”
    ([1966] 1 WLR 1234)

    In another case called Miliangos v George Frank (Textiles) Ltd, Lord Wilberforce recognises:

    “My Lords, in conclusion I would say that, difficult as this whole matter undoubtedly is, if once a clear conclusion is reached as to what the law ought now to be, declaration of it by this House is appropriate. The law on this topic is judge-made: it has been built up over the years from case to case. It is entirely within this House’s duty, in the course of administering justice, to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is long established only legislation can change it – that may be so when the rule is so deeply entrenched that it has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out.”
    (Miliangos v George Frank (Textiles) Ltd [1976] AC 443)

    1. The law on this topic is judge made on a case by case basis over the years. There is not much legislation of direct relevance here. Therefore, it is within the the House of Lords’ duty of administering justice to give the law a new direction. Because on principle and in reason, it appears right to do so.
    2. Lord Wilberforce is against the idea that the courts should wait for parliament to change the law, because the law is not so deeply entrenched that it has “infected” the whole legal system. Then parliament could legislate – but this case, raised by Miliangos and George Frank, does not concern that kind of fact.

    3. The choice of a new rule involves more far-reaching research than the courts can carry out. Parliament has the primary law-making function. It can call on much greater resources in order to carry out this function than the courts can. If there are major policy changes, the courts are inappropriate for them to take place.
    4. The courts hear an argument and make legal principles, but in terms of changing general policy the courts’ law making function is a profoundly limited one. The judges accept this. So this would also be an argument that in certain cases the house of lords should not depart from a previous decision because it should be left to parliament. However, on the facts of this case, this is not this kind of situation. There are some forms of dispute and some forms of creation of rules and principles that are more fitting to the work of the judge than the policymaker or parliament, and the sterling damages rule falls into that category.

  7. The Editor (Post author)

    The Matrix

    During the 1960s, Guido Calabresi wrote several groundbreaking essays applying economic theory to tort law. His central theme was that the goal of the legal system should not be to eliminate accidents altogether, but rather to create a pattern of incentives that would induce both people who cause accidents and the victims of those accidents to behave in socially optimal ways. “One View of the Cathedral” is now so much a part of the legal canon that it is widely known simply by the joined names of its authors, “Calabresi and Melamed”.

    Judges and scholars had traditionally assumed that there were only three possible responses to a case in which one landowner asserted a nuisance claim against another:

    1. the plaintiff could be granted an injunction;
    2. the plaintiff could be denied an injunction but granted damages to compensate her for the injuries she sustained as a result of the defendant’s past and future activities;
    3. the plaintiff could be denied both an injunction and damages.

    Calabresi and Melamed argued that the range of options available to a judge (or other legal decisionmaker) in such a case could be clarified by a matrix. The matrix suggests that when there are three or more rules in a case, there is most likely a fourth (hidden) rule which can be found within a matrix. Analysing the issue this way made clear that there were at least six possible responses to a nuisance case:

    Source: David Kennedy and William Fisher (2006) The Canon of American Legal Thought, Princeton University Press

    The real payoff of their approach consisted of the exposure of option #4. Hidden by the traditional approach was the possibility that the defendant could be granted an entitlement to engage in the challenged activity, but that the plaintiff could be empowered to force the defendant to desist by paying a specified sum. A crucial claim of the article was that the same schema could be applied to virtually any field of law. The credibility of the essay was much enhanced by a nearly simultaneous ruling by the Arizona Supreme Court in an unusual nuisance dispute. At issue in Spur Industries and Del Webb Development Corporation was a demand by the developer of a rapidly expanding retirement community. That a pre-existing cattle feed lot be shut down because it generated odors and flies that annoyed the community residents. Trying to balance several competing considerations, the seriousness of the harm, the fact that the developer, by building houses in close proximity to the feedlot, had come to the nuisance. And the innocence of the community residents, the court granted an injunction against the continued operation of the feedlot. But required the developer to indemnify the feedlot operator “for a reasonable amount of the cost of moving or shutting down”. Such a composite ruling, it should be apparent, is an example of Calebresi and Melamed’s rule four. The court seems to have been unaware of their as yet unpublished article. But its ruling provides strong support for the authors’ contention that a purchase injunction might make it possible to reconcile seemingly incompatible distributional and efficiency goals.

    [Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972)]

  8. The Editor

    The Doctrine of Precedent (Part 2)

    In the case “Schorsch Meier”, Lord Denning brings forward arguments that the Court of Appeal should be allowed to depart from the House of Lords: The demands of justice in a particular case may justify departure from the rules. Seeing that the reason no longer exists, the judges are at reason to discard the rule itself. It would be wrong to abrogate substantial rights by reference to procedural concerns (Schorsch Meier GmbH. v. Hennin [1975] Q.B. 416).

    The House of Lords

    In a variation of this argument, the Court of Appeal was considering in “Davis and Johnson” the case of a victim of domestic violence. Ms. Davis had unsuccessfully asked the court for an order to compel her abusive partner to leave the flat that they had been sharing. To allow her appeal and to grant her the injunction, the Court of Appeal would have to depart from previous decisions where injunctions had not been awarded in similar situations. Lord Denning is trying to make an argument that the urgent demand of justice would justify the Court of Appeal departing from its previous rulings in order to provide this woman with an injunction. He is also considering that it may be also a case where an individual lacks the financial means to bring an appeal to the House of Lords. This problem is compounded by the fact that wealthy litigants can pay off an appeal and so perpetuate an erroneous decision in law. Moreover, in the present case, Lord Denning notes that the delay that an appeal would cause, would add to Miss Davis’ hardship: while her case was being decided she was resident and a battered womens’ refuge in appallingly overcrowded conditions.
    Lord Denning’s argument returns to the roots of the jurisdiction of the Court of Appeal. When the court was set up in 1873, it was the final appellate court – as the jurisdiction of the House of Lords was not established until 1875. The court inherited jurisdiction of the Exchequer Chamber in the Court of Appeal and Chancery. As these courts were always considered to have the power to review their own decisions, it would be fair to assume that the modern Court of Appeal had inherited this jurisdiction. Lord Denning’s very sound argument also returns to another case (Bright v. Hutton [1852] 3 H.L.Cas. 341), which held that every court of justice possess an inherent power to correct an error into which it had fallen. However, Lord Diplock strongly disagrees:

    “So the rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following upon the announcement by Lord Gardiner L.C. in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning M.R. conducted what may be described, I hope without offence, as a one- man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case to its own previous decisions ; or, for that matter, by any decisions of this House itself of which the Court of Appeal disapproved. See Broome v. Cassels & Co. Ltd. [1971] 2 Q.B. 354 ; Schorsch Meier G.m.b.H. v. Hennin [1975] Q.B. 416. In his judgment in the instant appeal, the Master of the Rolls refers to a number of cases after 1966 in which he suggests that the Court of Appeal has either refused to apply the rule as laid down in the Bristol Aeroplane case or has added so many other exceptions to the three that were stated by Lord Greene that it no longer operates as a curb on the power of the Court of Appeal to disregard any previous decision of its own which the majority of those members who happen to be selected to sit on a particular appeal think is wrong. Such, however, has not been the view of the other two members of the Court of Appeal who were sitting with the Master of the Rolls in any of those cases to which he refers. Where they felt able to disregard a previous decision of the Court of Appeal this was only because, in their opinion, it fell within the first or second exception stated in the Bristol Aeroplane case.”

    “When Miliangos v. Geo. Frank (Textiles) Ltd. [1975] Q.B. 487 was before the Court of Appeal the Master of the Rolls appears to have reluctantly recanted. That was a case in which Bristow J. had held that he was bound by a decision of this House in In re United Railways of Havana, Ltd. and Regla Warehouses, Ltd. [1961] A.C. 1007, despite the fact that the Court of Appeal had purported to overrule it in the Schorsch Meier case. On appeal from his decision the Master of the Rolls disposed of the case by holding that the Court of Appeal was bound by its own previous decision in the Schorsch Meire case. He added: —

    “I have myself often said that this court is not absolutely bound by its own decisions and may depart from them just as the House of Lords from theirs: but my colleagues have not gone so far. So that I am in duty bound to defer to their view.”

    “The reasons why his colleagues had not agreed to follow him are plain enough. In an appellate court of last resort a balance must be struck between the need on the one side for the legal certainty resulting from the binding effort of previous decisions, and, on the other side the avoidance of undue restriction on the proper development of the law.”
    (Davis v Johnson [1978] 2 WLR 553)

    And Lord Salmon states in the same case:

    “I am afraid that I disagree with Lord Denning M.R. when he says that the Court of Appeal is not absolutely bound by its own decisions and may depart from them just as your Lordships may depart from yours. As my noble and learned friend Lord Diplock has pointed out, the announcement made in 1966 by Lord Gardiner L.C. about the future attitudes of this House towards precedents ended with the words: “This announcement is not ‘intended to affect the use of precedents elsewhere than in this House’. I would also point out that that announcement was made with the unanimous approval of all the Law Lords: and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not.”
    (Davis v Johnson [1978] UKHL 1)

    In this case, the other Lords are saying that Lord Denning’s argument goes too far and creates too much of a disturbance within the hierarchy of the courts. It would have been correct for the court to appeal to wait for the House of Lords to change this rule. This points to Morris’ (1977) argument on ow much the development of the law depends on the accidents of litigation:

    “Had the three cases of Jugoslavenska, Schorsch Meier and Miliangos come before the courts in the reverse order, the decision in Miliangos might well have gone the other way, because the Treaty of Rome point was not available, and the Jugoslavenska case would have been still below the horizon. In that event, even Lord Denning might have hesitated before distinguishing Miliangos in Schorsch Meier because of the Treaty of Rome point.”
    [Morris, J. H. C. (1977) English Judgments in Foreign Currency: A Procedural Revolution. In: Law and Contemporary Problems, Vol. 41, Issue 2, pp. 44-53]

  9. The Editor

    On the Value of Written Words

    The House of Lords in R (Quintavalle) v Secretary of State for Health [2003] UKHL 692; [2003] 2 WLR 692 considered an issue of construction of an Act raised by Mrs Quintavalle. Lord Bingham of Cornhill gave the following summary of legislative history and purpose:

    “Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing about the effect of a statutory provision it is usually because the provision is, or is said to be, capable of bearing two or more different meanings, or to be of doubtful application to the particular case which has now arisen, perhaps because the statutory language is said to be inapt to apply to it, sometimes because the situation which has arisen is one which the draftsman could not have foreseen and for which he has accordingly made no express provision.”

    “The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

    The issue that Lord Bingham raises is how a particular expression applies to a particular set of facts. For instance, in a case called Grant and Another v. Southwestern and County Properties Ltd. ([1975] 1 CH 185), Justice Walton had to decide whether a tape recording fell within the expression of the word document used in terms of the rule of the Supreme Court. Justice Walton decided that the furnishing of information ought to be treated as one of the main functions of a document, and he therefore concluded that a tape recording was indeed a document. Therefore, what Lord Bingham is asking to consider in the quote above are the various factors which can come into play in statutory interpretation, and the kind of instances that we find a court troubling itself over the meaning of a word in a statute.

    Another example is the word “can” in the Race Relations Act, which was interpreted in Mandla (Sewa Singh) v. Dowell Lee ([1983] 2 AC 548). Obviously a small word of the English language, the word could be interpreted in two ways. One way would have destroyed the entire system of prohibition on race discrimination that the act was trying to set up. This boils down to Plato’s (“Phaedrus”) general critique of writing:

    “And so it is with written words; you might think they spoke as if they had intelligence, but if you question them, wishing to know about their sayings, they always say only one and the same thing.”

    In Plato’s context, how is it then possible that a book on the art of rhetoric can possibly “yield results that are clear or certain?” (275c). How could rhetoricians possibly believe that their writing “can do more than remind those who already know what the writing is about?” (275d). Socrates points out several related problems inherent to writing:

    1. Like painting, it has no understanding of itself and “continues to signify just the same thing forever” (275d-e).
    2. It does not discern between appropriate and inappropriate audiences.
    3. It always needs the support of its writer (or “father”); for “alone, it can neither defend itself nor come to its own support” (275e).
  10. The Editor (Post author)

    Literal and Purposive Interpretation

    In a U.S. case, Justice Douglas states that the literal sense remains the most reliable way of interpreting words, but a mature and developed jurisprudence also remembers that statutes always have some purpose or object to accomplish. A sympathetic and imaginative discovery of this purpose is the surest guide to their meaning. Purpose of interpretation is an important technique of a common law judge:

    “These considerations indicate to us that it would be a distortion to read § 9(e) as if Congress, in December, 1941, decided that the statute of limitations applicable to World War I claims should likewise be applicable to World War II claims. If we gave § 9(e) that broad interpretation, we would, in the third place, deprive § 9(a) of all meaning so far as World War II claims were concerned. That we hesitate to do, for the Act was not only designed to operate in the first World War; it was also to become effective at the time of any future war, unless repealed or superseded. Yet the remedy afforded by § 9(a) would be quite illusory and ineffective so far as it applies to World War II claims if § 9(e) were read literally without regard to its history. It was for this reason particularly that the court below refused “to make a fortress out of the dictionary” and to read § 9(e) strictly and literally. The policy, as well as the letter, of the law is a guide to decision. Resort to the policy of a law may be had to ameliorate its seeming harshness or to qualify its apparent absolutes, as Holy Trinity Church v. United States, 143 U. S. 457 illustrates. The process of interpretation also misses its high function if a strict reading of a law results in the emasculation or deletion of a provision which a less literal reading would preserve.”
    [Markham v. Cabell, 326 U.S. 404 (1945)]

    Modern practice of judicial interpretation require to understand the contemporary background of the law of the United Kingdom. In the light of recent developments, such as the impact of European law, and the impact of European human rights law, U.K. judges have taken on a much more active role in interpretation and are much more willing to use purposive methods of interpretation. This points to the tools of statutory interpretation – the presumptions that inform judicial practice:

    1. The presumption against the alteration of the common law.
    2. That mens rea, the mental element, should be a part of a criminal offense.
    3. The presumption against the retrospective application of a statute.
    4. The presumption against the deprivation of an individuals liberty, property, or rights.
    5. The presumption that legislation does not apply toward the crown.
    6. The presumption against breach of international law.
    7. And the presumption that words take their meaning from their context.

    In the case Pepper v. Hart, the House of Lords took the opportunity to consider whether judges should be allowed to use Hansard as evidence when they are trying to interpret an act. They concluded that judges are allowed to make access to parliamentary material, and hence this would also mean lawyers could make use of this material in their submissions to court about the meaning of statutory provision. However, Lord Browne-Wilkinson narrowly defined the occasions when a court could make reference to Hansard:

    “My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.”

    “I accept Mr. Lester’s submissions, but my main reason for reaching this conclusion is based on principle. Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court’s duty in so doing to give effect to the intention of Parliament in using those words. It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. One of the reasons for such ambiguity is that the members of the legislature in enacting the statutory provision may have been told what result those words are intended to achieve. Faced with a given set of words which are capable of conveying that meaning it is not surprising if the words are accepted as having that meaning. Parliament never intends to enact an ambiguity. Contrast with that the position of the courts. The courts are faced simply with a set of words which are in fact capable of bearing two meanings. The courts are ignorant of the underlying Parliamentary purpose. Unless something in other parts of the legislation discloses such purpose, the courts are forced to adopt one of the two possible meanings using highly technical rules of construction. In many, I suspect most, cases references to Parliamentary materials will not throw any light on the matter. But in a few cases it may emerge that the very question was considered by Parliament in passing the legislation. Why in such a case should the courts blind themselves to a clear indication of what Parliament intended in using those words? The court cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament’s true intention be enforced rather than thwarted?”
    [Pepper (Inspector of Taxes) v. Hart [1992] UKHL 3]

  11. The Editor

    Change of Direction

    A change of direction in interpretation was introduced in another of Lord Denning’s judgment. The early European Union case Bulmer v. Bollinger is about intellectual property: Bulmer produces cider, Bollinger produces champagne:

    “Seeing these differences, what are the English Courts to do when they are faced with a problem of interpretation? They must follow the European pattern. No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent. To quote the words of the European Court in the Da Costa case (1963) 2 C.M.L.R. at page 237, ‘they must deduce from the wording and the spirit of the Treaty the meaning of the Community rules.’ They must not confine themselves to the English text. They must consider, if need be, all the authentic texts, of which there are now eight, see Sociale Verzekeringsbank (1968) 7 C.M.L.R. 151. They must divine the spirit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they can. They must do what the framers of the instrument would have done if they had thought about it. So we must do the same. Those are the principles, as I understand it, on which the European Court acts.”
    (HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974] EWCA Civ 14)

    This is a long way from literal interpretation which doesn’t involve any questions of the ultimate purpose of a legislation. Its focus is narrowly on the wording of the act itself. Lord Denning introduces a complete change of direction in how Statute is to be interpreted. The interpreter must divine the spirit of the Treaty, gain inspiration from it, and use this understanding to fill the gaps to resolve the ambiguities that are present within with the ambiguous rules.
    Lord Denning returns to this point in a later case called Macarthys v. Smith and adds more detail to how this method of interpretation interfaces with judicial interpretation of UK legislation:

    “It is important now to declare – and it must be made plain – that the provisions of Article 119 of the Treaty of Rome take priority over anything in our English statute on equal pay which is inconsistent with Article 119. That priority is given by our own law. It is given by the European Communities Act 1972 itself. Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.”
    (Macarthys Ltd v. Smith (No.2) [1980] EWCA Civ 7)

  12. The Editor

    New Methods of Interpretation

    In Pickstone v. Freemans (1989), the House of Lords had to interpret Section 1.2 of the Equal Pay Act of 1970. The act had been amended by parliament to make it coherent with obligations arising under Article 119 of the Treaty of Rome. The key question that the court had to resolve in this case was whether the amendment of the act, that is equal pay, did give effect to the obligations under the treaty to Article 119. In approaching the interpretation of the Equal Pay Act 1970 their lordships make use of a purposive approach. Lord Oliver determined that the purpose of the article was twofold. Firstly, to insure consistency in the legal systems of the member states across the community. Secondly, to improve working conditions. These objectives are furthered by a directive – another form of EU law that further clarify the precise terms of community law.
    (Pickstone v. Freemans Plc. [1989] AC 66)

    A problem arises in relation to some sections of the UK Act because they do not accord with these features of European law. A broad interpretation would have made the law coherent with European law, but it was difficult to square with the wording of the act itself composed prior to the date when the U.K. joined the community. However, the court was justified in a particularly wide departure from the wording of the act in order to achieve consistency. Lord Oliver is saying that it is open to the court to give a wide departure from the literal meaning from the wording of the act. It goes beyond what the act says and it prefers a wide meaning of those words in order to make the UK law consistent with community law.

    A case that goes even further in interpretation is Litster v. Forth Dry Dock and Engineering Co Ltd. The court gave a purposive interpretation to a statutory instrument that concerned rules relating to the transfer of employees’ rights in the event of the sale of a business. The court implied words into the terms of the Regulation so as to make it compatible with obligations under European law. Lord Oliver provides a summary of the way the court approached this issue of Interpretation:

    “If the legislation can reasonably be construed so as to conform with those obligations – obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg – such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.”
    (Litster v Forth Dry Dock and Engineering Co Ltd [1988] UKHL 10)

    If the court can depart from the literal meaning of the words used in the UK statute, they can

    • read words in,
    • add words,
    • imply words into

    the regulation or the the UK law, in order to make it consistent with EU law. This is again a long way from literal Interpretation. Some commentators have suggested that all these cases raise problematic constitutional issues about what judges are doing. Now what the judges are doing here is what Parliament has asked them to do. If we go back to Lord Denning in Macarthys Ltd v Smith (No.2) [1980] EWCA Civ 7, we can see that these practices of broad interpretation follow from the 1972 act. So we are looking at a shift in the way that the Constitution works.

  13. The Editor

    Law and the European Union

    The origins of the European Union lie in the reconstruction of Europe after 1945, and even go back to the Franco Prussian War in the 1870s and the First World War. The origins lie in a desire for a lasting peace after another devastating war. So this begs the question how one brings together those nations in peaceful relationships that would otherwise be fighting each other?
    The second thing to consider is the nature of the union itself, established as a trade block. It is a single market that stretches from the west coast of Ireland to the Urals.
    The third thing to bear in mind if we look at the foundational Treaty of Rome 1957 and subsequent developments in European Union law (it has since been amended by the Treaty of Amsterdam in 1997 and the Treaty of Nice in 2001), is a commitment to rights. Although the European Union is an economic organisation, it is committed to foundational values like the free movement of people, goods and services, throughout the region. This in turn brings with it certain social rights. The development of the European Union is conducted increasingly by a commitment to and an appreciation of the importance of rights to the economic organisation.
    And the fourth thing to bear in mind, it is an experimental engagement with a super-national organisation for all its technical complexity. It is an unfinished project or a work in process.

    The Charter of Fundamental Rights (CFR) sets out in one text the full range of civil, political, economic and social rights of EU citizens, as well as all other persons living in the EU. The CFR became legally binding for all member states in 2009. The purpose of the CFR is set out in its introduction: “It is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter“. The CFR is divided into six sections: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice.

    There are at least two distinct concerns and the reason why the Union is using this language of human rights:

    1. Since the foundation of the Union, there has been a growing sense of its institutions remain opaque and distant from those whose lives they govern. The comprehension and distrust of the Union continues to express itself in the politics of different member states, which could be described as a legitimacy gap. Commitment to human rights provides at least one way of stressing that the Union is transparent, accountable, and dedicated to the rule of law.
    2. The second concern relates to the expansion of the Union to include nations that had been from the communist or state socialist control prior to the collapse of the USSR. The language of legitimacy appears within terms of human rights in the Charter. The obligation of the Union to respect fundamental rights have been defined and confirmed by the European Court of Justice.

    (See also Annex 4 of the Charter of Fundamental Rigths of the European Union)

    The EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, including the rule of law. The EU defines in the European Convention on Human Rights some kind of European heritage – a set of values which are common to the different national traditions that make up the European Union. However, if we remember what happened in World War I and WWII, the collapses of democracy and today’s attitudes of post-communist countries such as Hungary, it seems that these values are more fragile than the EU would admit, or perhaps viewed one way. There is a tendency for these values to collapse within national traditions. Therefore, the Union has the need to strengthen these national traditions through a supranational organisation which is committed to these principles. How the idea of democracy, which is traditionally and conventionally expressed in relation to national institutions, works itself out in relation to supranational institutions remains to be seen. This is the reason mentioned above why the EU can be seen as work in progress.

    The central institutions of the EU are the European Commission, the Council of the European Union, the European Parliament, and the European Court of Justice.

    1. The European Commission:
      • upholds the interests of the EU;
      • is independent of its member states;
      • is the EU’s executive body;
      • proposes legislation, which is then presented to parliament and to council;
      • is also the EU’s executive body, responsible for the management and implementation of EU policies;
      • enforces EU law.

      Legislation is executed by the principle of subsidiarity. Action will only be taken at the EU level if the matter cannot be resolved at a national, regional or local level. As guardian of the treaties, the Commission has the power to ensure that member states are correctly implementing new law. If necessary, the Commission can take a member state to the European Court of Justice. Members of the Commission are nominated by the EU member states and approved by the European Parliament.

    2. The Council of the European Union:
      • represents the interests of member states (as reflected in the composition of the body);
      • represents the interests of their states in the matter under discussion;
      • has a role to play in legislation;
      • coordinates the economic policies of member states;
      • encourages coordination of national policies in health, education and welfare;
      • engages in international coordination of legal systems in the policing of the Union.
    3. The European Parliament:
      • represents the interests of the citizens of Europe;
      • is directly elected every five years;
      • plays a central role in the creation of legislation, thus upholding legitimacy of European law;
      • has powers of supervision over EU’s institutions, and the commission is accountable to European Parliament;
      • alongside Council also has authority over the Union’s budget;
      • can influence decisions on how money is to be spent.
    4. The European Court of Justice:
      • has the power to interpret new legislation and ensure its uniform application throughout the union;
      • ensures that both member states and institutions act within the law;
      • can also adjudicate disputes between member states.

      Its composition reflects the fact that it is a court of the Union whose members have different legal traditions.

  14. The Editor

    EU Law

    The European model was initiated to stop war between its countries, but … “The main goal of the community is the progressive integration of Member States’ economic and political systems, and the establishment of a single European market based on the free movement of goods, people, money, and services.” (see Fact Sheets on the European Union)

    French delegation head Jean Monnet signs the treaty of the Schuman Plan in Paris on March 19, 1951 (Source: AFP/Getty Images)

    To this end, its members states cede part of their sovereignty under treaties which empower EU institutions to adopt laws. It follows that law is of incredible importance to the union – not least the connection between legal values and ideas like democracy and the rule of law, but to the functioning and the running of this single market and super-national structure. Therefore, EU Law has to be the same throughout the Union, which in turn raises a lot of problems and legal issues.

    EU law can be divided into two types,

    • Primary legislation: the treaties like the Treaty of Rome.
    • Secondary legislation as defined by Article 249 of the Treaty of Rome:

      “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

      A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

      A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

      A decision shall be binding in its entirety upon those to whom it is addressed.

      Recommendations and opinions shall have no binding force.”

    The European Court of Justice has approached directives in a particularly creative manner, as explained by the British Court in Van Duyn v Home Office [1975] Ch 358:


    However, as stressed above, it is necessary to determine whether “the nature, general scheme and wording of the provision in question are capable of having direct effects”. The directive would have to be unconditional and sufficiently precise in order to give rise to direct effect – to create rights which a citizen could use in court.

    Unlike regulations and directives, decisions are addressed to specific parties: member state, company, individual. Decisions are EU laws relating to specific cases. They emanate from the council, or the council acting in partnership with the European Parliament or the Commission. They create binding obligations and can be used to prohibit, enable, or to confer rights.

  15. The Editor

    Growth and Principles of Human Rights Law in Common Law

    The origins of the Human Rights Convention can be linked to the growing belief that the protection of human rights against oppressive governments should be embodied in a new world order. Although there had been international institutions such as the League of Nations, that have existed prior to 1939 and the outbreak of the Second World War, the ending of the hostilities gave an added impetus to the creation of an international structure in Europe that would allow a just world order – a new world order that comes out of the destruction wrought by WWII. Governmental misconduct would be brought under the control of the international community to come into existence at the time. There is also a relationship between the Universal Declaration of Human Rights by the United Nations and the European Convention on Human Rights (ECHR). The ECHR is a local human rights system and the roots of the European Convention rest in the reconstruction of Europe after WWII.

    The destruction of the Warsaw Ghetto

    Although certain German and French politicians were certainly keen to achieve measures of European integration, the British position was more complicated. Britain’s Foreign Secretary Ernest Bevin supported regional human rights. But he was reluctant to countenance federalism in Europe. Although there was an acknowledgement that the British Empire would have to be dismantled and independence granted to former colonised territories, the consensus shared by both the Labor Party and the Conservative Party was that this process would have to be gradual. There was a fear in both the Foreign Office and the Colonial Office that human rights were not in Britain’s interests, as they might act as a spur to independence movements and would also bring international scrutiny on what was perceived as a national matter.

    Nevertheless, in May 1948 delegates from numerous European countries attended the Hague Conference. They resolved the drafting of the Convention on Human Rights. The honorary president Winston Churchill, who was then in opposition, was a really enthusiastic proponent of a statement of human rights – a point often forgotten in the United Kingdom and elsewhere.
    In 1949 the Council of Europe was created and tasked with the creation of the Convention. The body of the Convention was carefully designed to make no significant inroads upon state sovereignty. Indeed, its composition and status reflects a lack of consensus over the precise form of rights’ protection in Europe. It had no legislative or executive status. However, its most important asset was the mere fact of its existence and the rise and rise of an idea. It began to be seen as a fundamental support for the stability and democracy in Europe.

    Human rights are of course international. We use the terminology that they are universal. This is obviously somewhat inconvenient for the government of nation-states, who have traditionally claimed absolute power over their citizens. The extent to which we have international human rights, or a court of international human rights, is necessarily going to interfere with the kind of claims that a national government can make. Additionally, these rights may be inconvenient in relation to what a nation state might intend to do. These rules and standards bestow upon the nation-state — one of the major violators of human rights — the responsibility of protecting human rights. It is called the “paradox of human rights”. International human rights rely on the nation-states to put rights into effect. And yet nation-states are often reluctant to countenance human rights because those human rights will necessarily put a limitation to the kind of power they have as national governments; their state sovereignty. These themes run through all human rights law. They run through the European Convention on Human Rights as much as through the Universal Declaration of Human Rights by the United Nations, or any other body of human rights.

    It is worth stressing that with the European Convention on Human Rights we are looking at a system where individual petitions can be submitted to a court. If one compares that with other international human rights institutions or systems, one can see that the European system is characterised by a relatively strong court which recognises individual petitions. As a citizen, I can take a case to the European Court of Human Rights, and the court may award remedies. Hoffman and Rowe (2010) argue that the Convention was an extremely radical innovation. Never before has there been a system of international law which holds states accountable to some superior court in respect of actions against their own citizens. Previous international courts and tribunals were constituted solely to settle disputes between states, or in the case of the Nuremberg tribunal, to try individuals for their own criminal responsibility.

    The Convention was ultimately signed in Rome in 1950 and created a European Commission of Human Rights and a Court. The early history of the Convention sees the case load of the court being reasonably light. However, by the end of the 1990’s it became clear that the Court and the Commission were finding it hard to cope with the ever increasing number of cases remitted to them. Protocol 11, which was ratified in 1998, sought to streamline the nature of the institutions by enhancing the power and the means for enforcing the judgments of the Court. The protocol also made it mandatory for nation-states to recognise both, the right of individual petition as well as the jurisdiction of the European Court of Human Rights. As the as former Soviet Bloc nations became signatories to the Convention, the case load to the Court increased. A report submitted to the committee of ministers in 2006 indicated that a further scale of reform was necessary. Human rights began to be seen as a fundamental support for the stability of democracy in Europe.

    [Hoffman, D., & Rowe, J. J. (2010) Human Rights in the UK: An Introduction to the Human Rights Act 1998, Pearson Education]

  16. The Editor

    The Rights of Man and Human Rights

    The Battle of Lewes (14th May 1264) was the culmination of a long military and political struggle between Henry III and the rebel barons led by Simon de Montfort, and the decisive defeat of the king led to important advances towards a representative Parliament. The message of this Memorial for the People of Lewes, and for the wider public, is expressed in the words inscribed round the frieze which are translated from The Song of Lewes, a Latin poem written by an unknown churchman after the battle:

    “Now Englishmen, read on about this battle fought at Lewes’ walls. Because of this you are alive and safe. Rejoice then in God.
    Law is like fire, for it lights as truth, warms as charity, burns as zeal. With these virtues as his guides the king will rule well.”

    Battle Monument (Source: Battlefields of Britain)

    If the king rules in accordance with the law, then the king will rule well. This does not suggest that the law is more powerful than the king, but that the law is binding on the king. In this period, the idea was that the king ruled by divine right. If we move forward in time away from the Battle of Lewes to the French Revolution and the American Revolution, then we see a different set of claims appearing which link government to the people. Obviously with the revolutions, law becomes linked to the idea of the rights of man. Government is there to enforce the power of the community in such a way that the fundamental rights and freedoms are protected.

    The Protected Rights and Freedoms

    The European Convention of Human Rights (ECHR) is divided into “articles”. Articles 2 to 14 set out the rights that are protected by the Convention. Over the years the Convention has been supplemented by a number of ‘protocols’ that have been agreed by the Council of Europe. Some of the protocols just deal with procedural issues but some guarantee rights in addition to those included in the Convention. Some of the most important rights and freedoms protected under the ECHR are:

    • right to life (Article 2)
    • prohibition of torture (Article 3) [“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”]
    • prohibition of slavery and forced labour (Article 4)
    • right to liberty and security (Article 5)
    • right to a fair trial (Article 6) [“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”]
    • no punishment without law (Article 7)
    • right to respect for family and private life (Article 8)
    • freedom of thought, conscience and religion (Article 9)
    • freedom of expression (Article 10)
    • freedom of assembly and association(Article 11)
    • prohibition of discrimination (Article 14)
    • right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)
    • right to free elections (Article 3 of Protocol 1) [free elections at reasonable intervals by secret ballot ensuring free expression of the opinion of the people in the choice of the legislature].

    Understanding the Convention

    Physical Integrity Rights

    • right to life (Article 2)
    • prohibition of torture (Article 3)

    Classical Civil Liberties
    The kind of civil liberties that the common law has always stood for:

    • freedom of expression (Article 10)
    • freedom of assembly and association(Article 11)

    Due Process (Integrity of Legal Core Proceedings)

    • right to a fair trial (Article 6)
    • no punishment without law (Article 7)
    • prohibition on the abuse of rights (Article 17)
    • limitation on the restrictions of rights (Article 18)

    Economic, Social and Cultural Rights

    • prohibition of slavery and forced labour (Article 4)
    • The ECHR offers rather limited protection in terms of cultural rights compared to other international catalogs of rights, such as the International Covenant on Economic, Social and Cultural Rights. Article 4 is as far as the European Convention goes. We are missing social and economic rights, like explicit statements of the right to education or the right to health care.

    Civil Society and Basic Forms of Social Plurality

    • right to respect for family and private life (Article 8)
    • right to marry (Article 12)
    • freedom of thought, conscience and religion (Article 9)
    • prohibition of discrimination (Article 14)

    The ECHR rights incorporated into English law under the Human Rights Act 1998 appear as a Schedule to the Act. [See legislation.gov.uk/ukpga/1998/42/schedule/1]

  17. The Editor (Post author)

    Basic Legal Terms

    Action: Case, cause, suit or controversy disputed or contested before a court of justice.

    Affirm: To declare a judgement, decree or order is valid and must stand as rendered below.

    Alternative Dispute Resolution (ADR): Processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party.

    • Arbitration is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons (the “arbitrators”), which renders the “arbitration award”. An arbitration award is legally binding on both sides and enforceable in the courts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. In certain countries such as the United States, arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts and may include a waiver of the right to bring a class action claim.
    • Mediation, as used in law, is a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Mediation can be used to resolve disputes of any magnitude. Mediation is typically less costly, less formal and less complex than litigation. Unlike courts, mediation does not ensure binding agreements and the mediator does not decide the outcome.

    A Fortiori: Literally, with stronger reason. A logic term used to label an argument claiming that because one ascertained fact exists, therefore another, analogous fact must also exist.

    Amicus Curiae: Literally, a friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views.

    Averment: In a pleading, to allege or assert positively.

    Cause: A lawsuit, litigation, or action. Any question, civil or criminal, litigated or contested before a court of justice.

    Cause of Action: The facts that give rise to a lawsuit.

    Certiorari: Literally, to be informed of. The loser of a case will often ask the appellate court to issue a writ of certiorari, which orders the lower court to convey the record of the case to the appellate court and to certify it as accurate and complete. If an appellate court grants a writ of certiorari, it agrees to take the appeal, often referred to as “granting cert.”

    Class Action: Representative action is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group. The class action originated in the United States and is still predominantly a U.S. phenomenon, but Canada, as well as several European countries with civil law have made changes in recent years to allow consumer organisations to bring claims on behalf of consumers. Instead of each damaged person bringing his or her own lawsuit, the class action allows all the claims of all class members — whether they know they have been damaged or not — to be resolved in a single proceeding through the efforts of the representative plaintiff(s) and appointed class counsel.

    Common Law: Generally understood as law arising from tradition and judicial decisions, as opposed to civil law. But the term “common law” has three different meanings,depending on context:
      i. common law jurisdiction as distinct from civil law jurisdiction
      ii. common law as distinct from statute law
      iii. common law as distinct from equity.

    Declaratory Judgment: A judgment that, without the need for enforcement, declares the rights of the parties or an interpretation of the law. A binding adjudication of the rights and status of litigants even though no actual, consequential relief is awarded. A party asks for a declaratory judgment if it feels the law is unclear, wants to be sure it is acting legally before acting, or wants to inform everyone that a certain action is legal or illegal. Such a judgment is conclusive in a subsequent action between the parties as to the matters declared. For example, a court may be asked to issue a declaratory judgment on the constitutionality of a statute. Compare with injunctions.

    Decree: The judgment of a court of equity or chancery, answering for most purposes to the judgment of a court of law. A decree in equity is a sentence or order of the court, pronounced on hearing and understanding all issues, and determining the rights of all the parties to the suit, according to the equity and good conscience. With the procedural merger of law and equity under the Rules of Civil Procedure, the term “judgment” has generally replaced “decree.”

    Demurrer: A motion to dismiss a civil case because of the legal insufficiency of a complaint. An allegation that, even if the facts as stated are taken to be true, there is no violation of law or grounds for a civil damages.

    Dicta: An observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, but not necessarily involved in the case or essential to its holding; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion, lacking the force of adjudication. Dicta does not have the force of law, as it is incidental to the main issue before the court.

    Directed Verdict: In a case in which the party with the burden of proof has failed to present a prima facie case for jury consideration, the trial judge may order the entry of a verdict without allowing the jury to consider it, because, as a matter of law, there can be only one such verdict. A directed verdict finding of not guilty may be appealed to a higher court, whereas a jury finding of not guilty cannot.

    En Banc: All judges of a court sitting together. Appellate courts can consist of a dozen or more judges, but often they hear cases in panels of three judges. If a case is heard or re-heard by the full court, it is heard en banc.

    Enjoin: To require a person, by writ of injunction, to perform or to abstain from some specific act.

    Equity: A separate body of law developed in England in reaction to the inability of the common-law courts, in their strict adherence to rigid writs and forms of action, to consider or provide a remedy for every injury. The king therefore established the court of chancery or equity, to do justice between parties in cases where the common law would give inadequate redress. The principle of this jurisprudence is that equity will find a way to achieve a just result when legal procedure is inadequate. Equity and common-law courts are now merged in most jurisdictions.

    Ex Contractu: A common-law action arising out of contract or a cause of action arising from a breach of promise.

    Ex Delicto: A common-law action arising out of tort or a cause of action arising from breach of duty growing out of contract.

    Ex Ante: Before the fact or event in question has occurred.

    Ex Post: After the fact or event in question has occurred.

    Finding: Formal conclusion by a judge or regulatory agency on issues of fact; also, a conclusion by a jury regarding a fact. Usually findings of fact cannot be appealed once the lower court has made its determination.

    Holding: The legal principle to be drawn from the opinion of the court; the answer to the question posed before the court.

    Injunction: A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. Generally it is a preventive and protective remedy, aimed at future acts, and is not intended to redress part wrongs. Compare with declaratory judgment.

    Inter alia: Literally, among other things. A term used in pleadings, especially in reciting statues, where the whole statute was not set forth at length.

    Judgment: The final disposition of a lawsuit.

    Judgment n.o.v.: Literally, a judgment non obstante verdicto, which translates as judgment notwithstanding the verdict; it is a judge’s decision to decide a case contrary to the verdict of the jury.

    Overrule: To make void. A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law directly opposite to the earlier opinion, thereby depriving it of all authority as a precedent.

    Per Curiam Opinion: An unsigned opinion of the court; an opinion of the whole court, as distinguished from an opinion written by any one judge. Sometimes it denotes an opinion written by the chief announcement of the disposition of a case by a court not accompanied by a written opinion.

    Perjury: The intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice. In the United States, for example, the general perjury statute under federal law classifies perjury as a felony and provides for a prison sentence of up to five years.

    Precedent: In common law legal systems, precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies).

    Prima Facie Case: Literally, on the face of it. A case that is sufficient – that is, has the minimum amount of evidence necessary to allow it to continue in the judicial process and the pass a motion for direct verdict. Such cases will prevail until contradicted and overcome by other evidence.

    Remand: To send a dispute back to the lower court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court’s ruling.

    Res Judicata: Literally, a thing decided. The rule that a final judgment rendered by a court constitutes an absolute bar to a subsequent action involving the same cause of action.

    Reverse: To make void a judgment of a lower court by an appellate court, or to change to a contrary or former condition.

    Sine Qua Non: Literally, without which not. An indispensable requisite or condition.

    Stare Decisis: Akin to precedent, the doctrine that courts will follow principles of law laid down in previous cases.

    Summary Judgment: Disposition of a claim without trial when there is no dispute as to material fact, or if only a question of law is involved.

    Trespass: A form of action brought to recover damages for any injury to one’s person or property or relationship with another. Generally, trespass was understood to mean the redress of harm caused by the defendant’s direct and immediate application of force against the person or property of the plaintiff. Compare with trespass on the case.

    Trespass on the Case: In common law, the form of action adapted to the recovery of damages for some injury resulting to a party which is the indirect or secondary consequence of a defendant”s act. Such action is the ancestor of the present day action for negligence, otherwise known as “case.”

    Writ: A handwritten judicial order to perform a specified act or to institute an action at common law. Historically, in order to commence most actions, plaintiffs had to obtain the appropriate kind of writ. Trespass and trespass on the case are the two writs that covered most of the harms actionable within the common-law system.

    • Writ of Mandamus: A writ issued by a court ordering a public official to perform an act.
    • Writ of Replevin: A writ issued by the court ordering recovery of a possession that has been wrongfully taken.

    Other References:


  18. The Editor

    Basic Structure of the American Judiciary

    [Taken from: Christopher G. Wren & Jill Robinson Wren (1986) The Legal Research Manual]

    Effective legal research requires a further refinement of governmental structure with respect to the judiciary. Within the court systems there usually several levels, each of which performs a specific function. The federal courts have three levels, as do many state courts: a trial level, an intermediate appellate level, and a final appellate level. Figure D illustrates this arrangement.

    At the federal level, the trial courts are called United States District Courts. Each state has within its boundaries at least one federal judicial district, and some states have several. The number of districts in a state is determined primarily by population and the geographic size of the state. For example, Massachusetts has only one federal judicial district, which covers the whole state and is called the United States District Court for the District of Massachusetts. California, on the other hand, has four federal judicial districts, each of which covers a discrete geographic region of the state. California’s four districts are known as the U.S. District Court for the Northern District of California, U.S. District Court for the Central District of California, U.S. District Court for the Southern District of California, and U.S. District Court for the Eastern District of California.

    Federal intermediate appellate courts are known as United States Courts of Appeals. There are 13 federal Courts of Appeals, each of which covers a particular geographical area known as a “circuit.” There are 11 numbered circuits (First Circuit, Second Circuit, etc.), a circuit for the District of Columbia, and a circuit known as the Federal Circuit. Except for the D.C. Circuit, each Court of Appeals circuit encompasses several states. For example, the Tenth Circuit embraces Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The Federal Circuit hears appeals from all U.S. District Courts in certain specialized kinds of cases. The map in Figure E shows the geographical organization of the United States Courts of Appeals.

    When a party to a lawsuit in a U.S. District Court wants to appeal that court’s decision, the appeal normally goes to the U.S. Court of Appeals covering that district. For example ( as Figure E Shows), if you were involved in a lawsuit in a U.S. District Court in California and you wanted to appeal the decision in your case, you would take you appeal to the U.S. Court of Appeals for the Ninth Circuit. Similarly, a party in a lawsuit in a U.S. District Court in Oklahoma would take an appeal to the U.S. Court of Appeals for the Tenth Circuit.

    The final appellate court in the federal court system is the Supreme Court of the United States. The U.S. Supreme Court hears appeals from the decisions of the U.S. Courts of Appeals; from the highest appellate court of each state (when a federal question is involved); and (on extremely rare occasions) directly from U.S. District Courts. In certain limited cases. the U.S. Supreme Court also has original jurisdiction and then acts as a trial court.

    State court structures vary from state to state. Many states have three levels, like the federal system although some have only two (a trial level and one appellate level). The names of the state courts differ among the various states, too. For example, the highest court in Massachusetts is called the “Supreme Judicial Court”; in New York, it’s known as the “Court of Appeals”; and in California it’s called the “Supreme Court.”

    Regardless of the courts’ names, though, they perform essentially the same functions at both the state and federal levels. Trial courts decide what the facts in a given dispute are, and what those facts mean in terms of the law — for example, whether they mean guilt or innocence, and if guilt, what the penalty should be. Appellate courts review to see if the trial judge correctly applied the relevant points of law to the facts determined at the trial level; except in rare cases. appellate courts do not re-evaluate or redetermine findings of fact made at the trial level.

    The structure of the federal court system and many state court systems is shown schematically in figure F.

  19. The Editor (Post author)

    U.K. Structure of the Courts & Tribunal System

    Heavily stolen from:


    Please note that the arrows indicate the route of appeal through the different courts.

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