Analyzing Legal Systems and Texts

This assignment analyzes different legal systems and methodologies by examining a provided list of books. The list includes works on Roman Law, common law, evidence law, English legal history, and specific aspects of the English legal system such as Crown Proceedings and public building regulations. Additionally, the collection features texts on European law, comparative law (Russian Constitutional Law), and historical linguistic influences on Medieval English.

Legal SySTEMS AND
METHODS

Table of Contents
Importance of distinction and relative importance facts and Law in the Common law...............2
Case 1: Thoburn vs Sunderland City Council case.......................................................................3
Case 2: Council of Civil Service Union vs Minister for the Civil Service...................................5
Conclusion....................................................................................................................................7
References.....................................................................................................................................8
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Importance of distinction and relative importance facts and Law in the Common law
The Common Law system is typically followed by the British countries and former British
colonies. The significant features of the common law system are in the facts and laws in it.
This law does not have any written constitution or codified laws, this is mainly defined by the
judges, courts and tribunals on the basis of individual cases but those decisions have
precedential effect on the future cases of similar kind.1 For a current case if the court finds any
similar dispute from the previous case than the court have to follow the previous case
reasoning. The decisions of the court can only be reversed by that same court only or by
legalization. There is extensive freedom of the contract as there are few that are impelled into
the contract by law as per the decisions made in the previous cases. The most significant
feature of this Common Law system is that everything is permitted in the case which is not
prohibited by the law so the clients can use any document or proof to win the case under
common law. This law is very much useful in this kind of out of the book cases because there
also the justice will be served by the court. Or in case of any new case the court will justify the
facts and importance of law in order tom serve justice because the law should be same for any
personnel.2
Factual situations create legal disputes and it is extremely important to understand the
distinction between law and fact in common law jurisdictions. In legal terms, fact is the event
due to which litigation arises, on the other hand, the actual rules that determines how the courts
will view facts is referred as law. The common Law mainly focuses on the facts and the
decisions given or laws used in previous cases. The facts have a huge role to play in case of
this common law because that determines the judgment of the case. The common law system is
less perspective than any other law system because there is no hard coded laws or rules. Under
common law systems, actual events of a case are focused in the question of facts which maybe
examined by jury. These issues are material to the outcome of the case and requires
interpreting the conflicting views that surround the case on factual circumstances. Whereas, the
1 Buckland W and McNair A, Roman Law And Common Law (1st edn, Cambridge University Press
2011)
2 Allan H, Quaglia C and Grubits S, Fire Safety Engineering And The Approving Authorities (1st edn,
CSIRO Division of Building, Construction and Engineering 2011)
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legal principles and rules that a judge determines and the jury applies to the fact is covered
under question of law. For example – the question whether the total compensation of taxpayer
is reasonable in amount and whether entertainment expenses can be deducted by taxpayer arre
the issues related to the question of facts and question of law. The former is a question of fact
as one cannot determine whether compensation is reasonable by consulting tax law. But the
later question i.e. whether expenses is deductible requires knowledge of tax law. Another
example can be whether an expenditure is revenue or capital is a matter of question of law but
whether expenditure incurred was genuine or not is a question of fact which generally requires
investigation. Legal facts are information on which arguments of lawyers are based for winning
the case in the court of law. The facts are proved using evidences that are presented during a
trial and designed to support one's argument. The laws is the basis of making decisions by the
jury. For instance – in case of murder, question of law is whether the facts presented in the trial
constitute a murder or lesser crime. The question of fact is whether testimony supports factual
basis on which charge of murder can be sustained. The government can wish to preserve the
rights of its citizens in specific legalization of any law under the common law in specific
legalization to the infrastructure program being anticipated.3 For example, the government can
implement a new law to prevent the service providers from cutting the water or electricity
services to the consumers for bad payment. For equal bargaining provisions, some legal
requirements can be implied upon for one party to have much stronger position than the other.
If there is any contract made under the Common Law System there need to have some
provisions and those terms need to govern the relationship between the parties in a contract
list.4
Case 1: Thoburn vs Sunderland City Council case
Despite of the Weights and Measures Act 1985, this particular act was provisioned
depending upon the sections 2(2) and (4) of European Communities Act 1972.5 In the United
3 Burrows A, A Restatement Of The English Law Of Unjust Enrichment (1st edn, Oxford University
Press 2012)
4 Wigmore J, Evidence In Trials At Common Law (1st edn, Aspen Publishers/Wolters Kluwer Law &
Business 2013)
5 Jurasinski S, The Old English Penitentials And Anglo-Saxon Law (1st edn, Cambridge University Press
2015)
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Kingdom both pound and kilogram are legal equally as the units of measurements as per the
Weights and Measures law Act 1985. But in 1995 an order was passed that the use of pound as
primary unit of measurement for trade purposes in UK will be illegal after the year 1999 and
would be judged as a criminal offence and traders have to use apparatus thereafter for the
metric scale of measurements. The Units of Measures Act 1994 was announced on the basis of
European Communities Act 1972, this is called as the Henry VIII clause.6 Steve Thoburn, a
greengrocer, was arrested and presented at the Sunderland Magistrates Court for using illegal
weighing apparatus, Colin Hunt, a fruit seller, Julian Harman, a greengrocer and John Dove, a
fishmonger were also convicted under the same law in the UK at the same time.7 The convicts
also appealed that concerning the public international law the EU law cannot be implied
without the knowledge of the constitutional principle of the parliament of any European
country. As the member of European Union the United Kingdom Parliament is free to create
and repeal any law made by the EU law system.8
The decision was made against all the five appellants named as “Metric Martyrs”
where the case was referred to the Queen’s Bench Division. But when the decisions were made
according to the High Court, all the appellants debated that both Kilogram and Pound were
recognized as equally legal units. He went on to hold with his decision because there was huge
inconsistency between the European Communities act and the Weights and Measures Act. That
is why the constitutional framework for the EU supremacy was needed.9
It is evident from the case that in the common law, the case examples and the
circumstances are given precedence in determining which law is to be applied which is based
on the previous cases where similar arguments were made. So the facts presented in the case
over ridden the precedence of the application of the law and thus, this case is important for its
recognition of supremacy of EU laws and considers law more relevant than the facts of the
case. Thus, it can be seen from the above case, that previously held judgements and laws play a
6 Wyatt R, Law (1st edn, A & C Black 2013)
7 Crown Proceedings Act 1947 (1st edn, TSO 2012)
8 Kennedy T, Cahill D and Power V, European Law (1st edn, Oxford University Press 2011)
9 The Public Building Programme In The United Kingdom (1st edn, HMSO 1969)
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critical role in determining the judgement of the case. Therefore, law is given more relevance
than the facts of the case and law prevailed over the facts.
Another example in this context can be the case of Cox v Hakes (1890), whereby the
law is that no appeal can lie to the Crown against the order of discharge of appellants for
habeas corpus which is a basic principle in law. Therefore, it is determined from this case that
law plays a cardinal role and the principle that when a person is discharged by an order of High
Court under habeas corpus, no jurisdiction would be entertained in the court of appeal
sustained over the facts.
Case 2: Council of Civil Service Union vs Minister for the Civil Service
The Council of Civil Service Union vs Minister for the Civil Service was also known as
the GCHQ case which was an English Administrative Law and UK Labor Law case. In the
year 1984 the Government of UK under Margaret Thatcher decided that any employee who is
working in any Government Communications Headquarters would not be allowed to be a part
of any trade union for the national security reasons.10 This was passed through an order in
council which was an exercise of the Royal Prerogative. Then the Council of Civil Service
Union went to the court with this issue. First to the high court, then to the Court of Appeal and
finally to the House of Lords.11 But nothing was unable to change the decisions of the
government.12
The House of Lords overturned the decision of the high court’s appeal of reasoning and
stated that the Royal Prerogative was subject to judicial review, in a similar way to statutory
actions. The court said that the ban on the workers of the GCHQ was made in presence to some
ministers and Prime minister rather than the presence of the full cabinet which was a very
questionable decision.13 But all the lords in the house agreed that from the national security
reason point of view the decision is justified. The House of Lords have no power to overturn
10 R Huxley-binns and J Martin, Unlocking the English legal system (Routledge 2014)
11 Slapper G and Kelly D, The English Legal System (1st edn, Routledge 2016)
12 Minister For The Civil Service ; Treasury: Government's Expenditure Plans 2000/01 To 2001/02.
Cabinet Office, Privy Council Office And Parliament Departmental Report 2000 (1st edn, Proquest LLC 2012)
13 Smith J, The Psychology Of Food And Eating (1st edn, Palgrave 2012)
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the issue of the national securities. The court was unwilling to subject prerogative powers to
judicial review. But the House of Lords have the power and authority to ask for judicial
review.14
The GCHQ case was highly significant because depending on the powers of the
government except the cases of national securities, all other cases were subjected to judicial
review about the justifications of those decisions. The House of Lords came to an unanimously
decision that if the orders of the council is subjected to violate the ‘primary legislation’ in the
Human Rights Act then it is subjected to judicial review.15
Therefore, the precedence of the facts in the common law and the specific circumstances are
enforced by this decision as the specific legislations and their applicability is given to the
judicial committee to decide which emphasizes the significance of the common law. The
importance of this specific case is high as this can be used in future cases as a guide for the
application of judicial review about the applicability of the relevant legislation. In the above
case, it can be seen that national security is not a legal issue but a political one and hence,
cannot be determined by court and facts are of more relevance in common law. Moreover, it
can be seen from the case of Attorney General v Jonathan Cape Ltd. that non legal conventions
may be subject to legitimate expectations. Although various laws could be used by the courts to
make decision but the facts of the case were more relevant here and they prevailed over law.
In this context, the case of United Australia Ltd v Barclays Bank Ltd. can be taken as
an example where facts of the case played important role in determining the decision-making.
It was held that the person whose goods are wrongfully converted by another has two remedies.
The first one is that he can recover the damages incurred as a result of conversion of his goods
and secondly, he has right to recover the proceeds obtained by such conversion.
Conclusion
14 Kremyanskaya E, Kuznetsova T and Rakitskaya I, Russian Constitutional Law (1st edn, Cambridge
Scholars Publishing 2014)
15 Fisiak J and Bator M, Foreign Influences On Medieval English (1st edn, Lang, Peter, GmbH,
Internationaler Verlag der Wissenschaften 2012)
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From the above discussion about the common law system it is clear that the procedure and
implication methods of the law system. The decisions and judgements depends on the previous
case results and if the matter is new then in judgement depends on the interest for the society
and common people.16 The law and facts have a great significance in the decision making in the
common law system. Sometimes it also depends on the merit and legality of the case. In case
of the Council of Civil Service Union vs Ministry for the Civil Service, the House of Lords
gave their verdict on the merit of the case and on the legality of the system. The national
securities were out of judgment but for the civil rights, they had to give judicial review. In the
case between the Thoburn vs Sunderland City Council case the court had given punishments to
the offenders but the conditions of the government and the European Community was
questioned which led to a new framework for the government and EU law. 17
16 Tillotson G, Fussell P and Waingrow M, Eighteenth-Century English Literature (1st edn, Harcourt,
Brace & World 2011)
17 Pound R, Readings On The History And System Of The Common Law (1st edn, Gale Ecco, Making Of
Mode 2011)
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References
Allan H, Quaglia C and Grubits S, Fire Safety Engineering And The Approving Authorities (1st
edn, CSIRO Division of Building, Construction and Engineering 2011)
Buckland W and McNair A, Roman Law And Common Law (1st edn, Cambridge University
Press 2011)
Burrows A, A Restatement Of The English Law Of Unjust Enrichment (1st edn, Oxford
University Press 2012)
Crown Proceedings Act 1947 (1st edn, TSO 2012)
Davis J, Medieval Market Morality (1st edn, Cambridge University Press 2012)
Fisiak J and Bator M, Foreign Influences On Medieval English (1st edn, Lang, Peter, GmbH,
Internationaler Verlag der Wissenschaften 2012)
Handbook On European Law Relating To Asylum, Borders And Immigration (1st edn,
Publications Office 2016)
Holmes O, The Common Law (1st edn, Dancing Unicorn Books 2016)
Jurasinski S, The Old English Penitentials And Anglo-Saxon Law (1st edn, Cambridge
University Press 2015)
Kennedy T, Cahill D and Power V, European Law (1st edn, Oxford University Press 2011)
Kremyanskaya E, Kuznetsova T and Rakitskaya I, Russian Constitutional Law (1st edn,
Cambridge Scholars Publishing 2014)
Minister For The Civil Service ; Treasury: Government's Expenditure Plans 2000/01 To
2001/02. Cabinet Office, Privy Council Office And Parliament Departmental Report 2000 (1st
edn, Proquest LLC 2012)
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Pound R, Readings On The History And System Of The Common Law (1st edn, Gale Ecco,
Making Of Mode 2011)
R Huxley-binns and J Martin, Unlocking the English legal system (Routledge 2014)
Slapper G and Kelly D, The English Legal System (1st edn, Routledge 2016)
Smith J, The Psychology Of Food And Eating (1st edn, Palgrave 2012)
The Public Building Programme In The United Kingdom (1st edn, HMSO 1969)
Tillotson G, Fussell P and Waingrow M, Eighteenth-Century English Literature (1st edn,
Harcourt, Brace & World 2011)
Wigmore J, Evidence In Trials At Common Law (1st edn, Aspen Publishers/Wolters Kluwer
Law & Business 2013)
Wyatt R, Law (1st edn, A & C Black 2013)
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