The system of statutory law

1 - A legislator enacts the acts and develops universal (general and abstract) legal regulations which contain general legal norms

2 - The legal regulations which are the product of the law - making process are targeted at the specific addressees of the law (objects of the law)

3 - Legal regulations contain a definition of the obligatory methods of conduct of their addressees (i.e. what the addressees can/should or cannot do to stay within the law)

	Common Law	Statutory Law
Definition	Common laws are laws that have been come about through decision of courts or other decisions.	Statutory laws are laws that have been written down and passed by the legislative branch of a country.
Origin	Precedent or judiciary	Legislator or Government
New Laws	New laws are passed or old laws evolve because of new decisions that have been passed in courts.	New laws are passed by the legislative system of a country.
Also known as	Case Law, Precedent	Written law, Session law
Nature	Instructive	Prescriptive
Operation level	Procedural	Substantive

Natural Law Theory and legal positivism

Hart suggests that natural law theorists believe that there is a necessary (or conceptual) connection between morality and law, while legal positivists do not (Hart’s Concept). That’s not bad, but it leaves too much to the imagination. What is the nature of this necessary connection with holds (or does not hold) between law and morality? Here’s a better go at it:

· Natural Law Theory (NLT): It is not possible that L is a law if L is deeply flawed from a moral perspective (Hart’s Concept, 156).

· Legal Positivism (LP): It is possible that L is a law (even) if L is deeply flawed from a moral perspective.

Philosophy of law – natural law. Natural law or the law of nature (Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere. Natural law is a model for the law that is developed by the state. Just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created". Legislators should discover natural laws and use it.

- Ideas which guide legal development and administration.
- A basic moral quality in law which prevents a total separation of the "is" from the "ought".
- The method of discovering perfect law.
- The content of perfect law deducible by reason.
- The conditions sine quibus non for the existence of law.

Legal positivism. Laws are rules made, whether deliberately or unintentionally, by human beings. It is applicable irrespective of whether it is recognised as fair and moral or not. There is no inherent or necessary connection between the validity conditions of law and ethics or morality.

- Laws are commands.
- The analysis of legal concepts is: worth pursuing, distinct from sociological and historical inquiries, distinct from critical evaluation,
- Decisions can be deduced logically from the predetermined rules without recourse to social aims, policy and morality,
- Moral judgments cannot be established or defended by rational argument, evidence or proof,
- The law as?it is? actually laid down, positum, has to be kept separate from the law that ought to be.

Customary Law

CUSTOMARY LAW - is the fundamental type of unwritten law which is derived from customs.

CUSTOMS are repeated and socially admitted ways of conduct which lead to the creation of CUSTOMARY LAW.

The conditions necessary for the process of forming of the customary law are the following:

• a custom is proved by its application within society

• application of a custom because people believe it is or should be applicable and binding

• consent of those who adopt customs

• it is applied over a certain period of time

There is A CUSTOM = a socially admitted/accepted way of behaving

By the consent, acceptance and approval of the society, as well as its belief that it should be binding à

A CUSTOMARY NORM is created à people behave in the agreed way à Their behaviour is repeated through a longer period of time

A state authority makes a decision on the basis of the customary norm à this governing and conventional act is the acknowledgement of a customary norm à

AN UNWRITTEN STANDARD (CUSTOMARY NORM) BECOMES THE LAW WHEN:

Certain established conduct (allowed or prohibited behaviour) is defined reasonably precisely - we know whom it concerns (which individuals or groups are the addressees), in what circumstances it is applied, etc.

There exists common conviction that a particular customary norm is binding in its nature (everyone wants this norm to be binding and so believes)

Appropriate authorities (a state /a group of states /EU members / institutions) include this norm in the system of binding law (domestic / EU / public international law) by expressing their consent and will to have this norm binding in the legal system and by sanctioning it (establishing a catalogue of santions for not following it)

The customary norm is therefore incorporated into the system of applicable standards (legal norms) - if this norm is not obeyed, there are sanctions from authorities

CUSTOM à CUSTOMARY NORM à CUSTOMARY LAW

Customary law:

• is an important source of international public law

• constitutes the basis of the legal system in the US and Great Britain (medieval English tradition)

• has some meaning in statutory law systems, e.g. Germany, Switzerland (in Poland - marginal role)

• significant in countries of the "South", also Africa and Asia

Dychotomy

Division / Partition /Splitting of a whole or a set into exactly two categories = two non-overlapping parts or sub-sets (so called: complements) which are:

• jointly exhaustive - everything must belong to one part or the other and

• mutually exclusive - nothing can belong simultaneously to both parts.

Common law and civil law. 1) The term " CIVIL LAW " refers to jurisdictions which have adopted the European continental system of law - the system based on ancient Roman civil law (e.g. the Roman Law of the Twelve Tables or the Justinian's Corpus Juris Civilis) but they owe much to the Germanic legal tradition as well

2) The term " COMMON LAW " refers to the legal systems which have adopted the historic English legal system

common law = judge-made law = case law -> ANGLO-SAXON LAW

civil law -> statute or statutory law -> THE EUROPEAN CONTINENTAL LAW

The civil law system = a system based on acts of legislation with a codified body of general abstract principles which control the exercise of judicial discretion -> all laws are codified and take form of a particular defined act from the catalogue of acts enumerated in a constitution of a state + published in the Official Journal of Laws (of a state/the EU);

The common law system = a case-centred and judge-centred system of uncodified laws (judicial decisions) with an ad hoc, pragmatic approach to the particular problems at stake appearing before the courts where judges have their full judicial discretion. Lack of officially published collections of judicial decisions - only law reports.

MATERIAL CONSTITUTION -> United Kingdom- lack of a single, core, written constitutional document but a set of laws and principles (norms) from different periods

FORMAL CONSTITUTION -> has a "form" of a written document -> laws and principles are codified

*The phenomenon of the European Court of Justice's (ECJ) jurisdiction - something in-between the common law and the civil law system:

-> the ECJ is (at least in theory) established on the basis of civil law principles common to the Member States;

-> the ECJ establishes and builds on a body of case law (in practice)

-> it recognises the "precedents" characteristic to the common law system;

-> the ECJ is not bound by the doctrine of STARE DECISIS (permanent standing decision) but nevertheless it does not decide individual cases on an ad hoc (case to case) basis -> national courts would be reluctant to refer similar cases to its jurisdiction

• Common law and Statute law.

1-Statute law - refers to law that has been created by Parliament in the form of legislation (although in civil statutory law systems courts also play an important role in creating, operating and interpreting the law in its practical context);

2-The common law - refers to the substantive law and procedural rules created by the judiciary through the decision in the cases they hear (case law; judge-made law)

*Civil Statutory Law --> prevalent in the Continental Europe- the countries of the North (West)

*Common Law - characteristic for the Anglo-Saxon world.

DISCUSSION ON THE CHARACTER AND IMPORTANCE OF STATUTE LAW AND COMMON LAW:

Statute law:

-certainty of precisely formulated general rules

-the greater legitimacy of laws enacted by the sovereign authority and, in modern era, by the democratic representatives of people

-statutes have no intrinsic evolutionary property--> their quality reflects that of the electoral process--> the legislature is closer to the preferences of the public because of its more direct democratic representativeness--> a static advantage of legislation (a stationary model of law)

Common law:

-supporters: Cato, Burke, Hayek

-the value of evolving tradition embodied in the history of judicial precedents

-hypothesis of its efficiency

-judges decide on the basis of precedent and of the rule their consider most appropriate--> the attitudal approach--> a model of decision- making by heterogeneous appellate judges who constantly innovate at the margin upon established precedents--> a dynamic, evolutionary model of law

*The optimal legal system is never pure statute law:

-civil law systems are characterised by their reliance on legislation instead of judge-made law

-however, social pressures to adopt more efficient institutions should lead to an increased role for case law in civil law jurisdictions--> contemporary ongoing convergence of statute writing and judicial law-making.

Law-making process in statutory law. 1) acts enacted by a single-person authority: preparation of the previsions of an act; acceptance of a draft legal act for its review by a competent authority; signature of an act by a single-person authority; announcement of an act.

(2) acts enacted by a collective authority: preparation of the prevision of an act; submission of the draft legal act for consideration (e.g. according to the Polish law - a draft has to pass through 2 chambers - the Sejm (lower) and the Senate (upper) and through 3 readings that comprise discussion on the particular provisions, amendment, voting; signature on behalf of the authority; promulgation (= announcement) of an act.

* According to Art. 88 (1) Polish Constitution => all acts in order to come into force must be announced = promulgated in the Official Journal of Laws (e.g. Dziennik Ustaw, Monitor Polski). Only then they are binding.

* VACATIO LEGIS= suspension of the effects of drafted laws- society must adjust to changes

Statutory law. 1 - A legislator enacts the acts and develops universal (general and abstract) legal regulations which contain general legal norms;

2 - The legal regulations which are the product of the law - making process are targeted at specific addressees of the law (objects of the law);

3 - Legal regulations contain a definition of the obligatory methods of conduct (i.e. what addressees can/should or cannot do to stay within the law).

• Common law and equity

-> a particular division within the English legal system of common law

-> Common law literally means "the universal" law (originally the law of the common people of England) standardised and unified throughout the state;

-> Traditionally, the circuit of judges travelling round the country establishing the "King's peace", selecting the best local customs and making them the basis of the law of England (unification of the fragmented state and its differing customs);

-> Prior to the Norman Conquest of England in 1066 - no unitary, national legal system

-> At the end of the 13th century - the establishment of the common law - the unification of the law established by the courts (JUDICIARY LAW and CASE LAW) under strong central authority of the king-> the common law as a guarantee of a unitary legal system under the auspices and control of a centralised power and strong authority of a sovereign king.

The gradual development of the courts from simple adjuncts of the King's Council (the Curia Regis) into autonomous institutions of Courts of Exchequer, Common Pleas and King's Bench (common law courts). The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief (those who held lands directly from the King, known as manors) and ecclesiastics that advised the king of England on legislative matters.

Three common law courts:

Courts of Exchequer- governmental agency; it originated after the Norman Conquest as a financial committee of the Curia Regis. By the reign of Henry II it had a separate organization and was responsible for the collection of the king's revenue as well as for exercising jurisdiction in cases affecting the revenue.

Court of Common Pleas (or Common Bench)- covered "common pleas"= actions between subject and subject, which did not concern the king.

King's Bench- The name of the supreme court of law in England. It is so called because formerly the king used to sit there in person, the style of the court being still coram ipso rege, before the king himself. During the reign of a queen, it is called the Queen's Bench, and during the protectorate of Cromwell, it was called the Upper Bench.

Plaintiffs were unable to gain access to the three common law courts could directly appeal to the sovereign ->pleas passed for consideration and decision to the Lord Chancellor acting as the King's conscience -> the need for flexibility of courts decisions -> the emergence of a specific court = "The Court of Equity" constituted to deliver "equitable" or "fair" decisions (the principles of settlement based on the judicial sense of equity)

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