Introduction to law and legal processes
- Course Code:
- 155200049
- Unit value:
- 1
- Year of study:
- Year 1
- Taught in:
- Full Year
Objectives and learning outcomes of the course
By the end of the course students will have:- A good grasp of the processes of Western-based law throughout the world, including, notably, the Western component of the law of Asian and African jurisdictions, as well as knowledge of the way in which that component was received into those jurisdictions.
- A grasp of the basics of comparative law technique and will have been given an introduction to the issues of transplantation of laws.
- An overview of all the legal systems of the world, and have a sound basis for both the English law and for the regional , international and comparative course units
The course will also be the principal formal forum for providing students with research (especially IT based research, which is particularly important given the School's subscription to the WestLaw and Lexis-Nexis databases), analytical and expression skills, including mooting.
Scope and syllabus
- The Nature of Law and its Categories: Different conceptions of 'law'; the categories of law. Jurisdictions of the World and Jurisdictions of the UK: The jurisdiction in the state positivist tradition. Reasons for the existence of three jurisdictions in the UK.
- Sources of Municipal Law in the common Law and Civil Law.
- Case-law and Precedent in the Common Law: History of Precedent; flexibility and rigidity; vertical and horizontal precedent
- Statues, Codes and Statutory Interpretation in the Common Law: Traditional English techniques; the English idea of the separation of powers; the introduction of the European dimension.
- Statutes, Codes and statutory Interpretation in the Civil Law: Civil Law Interpretation of statutes - state -centred law and the role of the legislator; the role of codes; civilian and common law attitudes towards the judiciary, separation of powers.
- Case-Law and Precedent in the Civil Law: Principle and reality in civil law case-law; the idea of 'constant jurisprudence'; the form of civil law judgments and the role of Courts of Cassation; comparison with common law ideas
- Doctrine and jurists in the Common Law and Civil Law
- Court Systems in the Common Law and Civil Law: The English court system; civil law court systems
- The Legislative Process in the Common Law and Civil Law (including ECHR aspects): The legislative process in the UK Parliament; legislative processes in the civil law; comparison of common law and civil law drafting styles; World Bank guidelines on legislative processes
- Judicial Control of the Legislature: Examples from the Common Law and Civil Law: Contrasting approaches to judicial control of legislation: common law attitudes ( England and US); examples from civilian law.
- Law and Equity: The defects of the common law; origins of equity and later developments; the relevance of equity today. The absence of separate equitable rules in civilian legal systems.
- The Legal Profession and the judiciary in the Common law and civil Law: the English legal profession; a civilian legal profession; comparison; conclusion as to the influence of the structure of the legal profession, legal training and attitudes on a legal system.
- Civil justice Systems and Access to Justice in the Common Law and Civil Law: The Common Law adversarial and oral tradition; the civil law inquisitorial and written tradition; common law unity and civil law fragmentation, the Woolf reforms; costs and access to justice in the common law and civil law.
- Criminal justice Systems and Access to justice in the Common Law and Civil Law: The common law system and the jury; the civil law system - examining magistrates, the partial or non-adaptation of the jury system; the jury as myth?
- The Legal Legacies of the Second World War: EC and ECHR Law in Historical Context: European Community Las as part of English law; ECHR Law in the Common Law and Civil Law
- Ancient Law and its Legacy to Modern Systems: The oldest laws and documents; Greek laws and Greek writing on law; the development and codification of Roman law; parallels with the civil law and common law.
- History of the Common Law and Civil Law and their Spread throughout the World: Roman law and Germanic customary law up to Renaissance; the development of the ius commune; the development of national European legal systems; the French revolution and The French Civil code; the German BGB; English isolationism and the development of the common law; the export of English law through colonialism; different types of reception ( including the divergence of US law; colonial reception statutes); colonial adoption of civil law, imposed and voluntary; introduction to legal transplant theory.
- Introduction to Comparative Law Methodology: The aims and benefits of comparative law in a globalised context; comparative law methodology; the importance of history , context, and multidisciplinary approach; application of these methods to the course content.
Notes:
The general terms 'Common Law' and Civil Law' have been used, rather than the names of specific jurisdictions, in order to allow the convenor the freedom to choose examples which he or she thinks most relevant or with which he or she is most familiar.
The common Law sections will always involve a substantial treatment of England and Wales so as to comply with the requirements of the professional bodies, but may include other jurisdictions, including those in Africa, Asia and the Middle East.
The Civil Law sections will in all probability deal primarily with France in the first year, but may involve other Civil Law jurisdictions, especially those in Africa, Asia and the Middle East, depending on availability of staff.
Although the course has been divided into Common and Civil Law sections, the division is not rigid and the material will be thought, wherever possible in a comparative, historical and jurisprudential manner (suitably simplified for the needs of first-yea students), with the emphasis on the legal processes, such as case-law.
