1. Legal English and the Common Law AY 2017/2018
Università degli Studi di Roma ″Tor Vergata″
Dipartimenti di Diritto Privato e di Diritto Pubblico
Prof. Paola Lucantoni

2. The language of a legal system. Constitutions, Laws, Courts
«Constitutional monarchy is a form of government in which a king or queen acts as Head of State, while the ability to make and pass legislation resides with an elected Parliament.
The Sovereign governs according to the constitution - that is, according to rules, rather than according to his or her own free will.»
(the official website of the British monarchy explaining its form of state)

3. A Constitutional Monarchy
A state’s constitution is the system of rules defining the composition, powers and relations of the state organs (the legislature, executive and judiciary);
it also regulates relations between the state and individuals.
Does Britain have a constitution?
Yes, but it is not embodied in a single written text.
It derives from a variety of sources, including legislation, judicial precedent and convention (a special constitutional source)
Even thought UK does not have a written constitution, many written constitutions in the world today have been shaped by the Westminster model of government.
The historic Bill of Rights is one source of the constitution, marking a shift in the balance of power between King and Parliament

4. The UK Constitutional Monarchy: ‘the Queen reigns but does not rule’.
The Sovereign holds the position of King or Queen
He or she does not govern
Constitutional convention: the Queen does not exercise real power because she must act on the advice of her ministers, this is an obligation imposed not by a law or by judicial precedent, but by usage, a recognised political practice considered binding by all the actors in the British constitution.
The Government governs. It is led by the Prime Minister and effected through legislation approved by Parliament.
The Royal Assent is the final step in the legislative process: this transforms a proposal of law into a law
the bill becomes an Act an Act comes into force on the day of the Royal Assent (except where the legislative text specifies a different date)
the monarch’s Royal Assent to bills approved by Parliament is not a personal political act is part of the Royal Prerogative: the various rights and powers that the king or the queen still has, reflecting her symbolic role as head of state.

5. Principal Sources of Law in the English legal system
1. Legislation
Legislation is enacted law: it is formally enacted by the legislator according to a procedure recognised as valid for producing law within the legal system.
Enacted law is also called written law.
Legislation is commonly referred to in Britain as statute law.
Primary legislation is composed by Acts of Parliament, enacted directly by the legislature itself;
Secondary or delegated legislation is subordinate legislation, when the legislature delegate legislative power to another body or individual, such as a government minister, and it enacts provisions exercising the power granted to it by Parliament.
(The formula that introduces the text of an Act of Parliament give it the force of law)
2. Judicial precedent
It is unwritten law: it is pronounced by the judges when deciding cases, but is not formally enacted by the legislature.
We refer to it as judge-made law, or frequently, common law.
(see below)

6. State Organs 2. Executive 3. Judiciary 1. Legislature (the government)
Legislature is the body having primary power to make written law.
(This term could be used in different ways)
The legislature may also be called the legislator or law- maker.
In the UK constitution the legal name for the legislature is the Queen in Parliament.
It is composed of:
the monarch,
the House of Lords,
the House of Commons.
(These 3 components are all mentioned in the enacting words)
2. Executive
(the government)
3. Judiciary
(the collective term for all judges)
Judges are not legislators!
But sometimes we use the term judicial law-making to refer to the judges’ creative role in developing legal principles.

7. Queen (or King) in Parliament
The Monarch
House of Lords
The so-called Upper House or Upper Chamber (unelected) had two functions:
legislative, as a chamber of a bicameral Parliament;
judicial, as the highest court in the hierarchy of the English courts.
The judicial function was not performed by the whole House, but by a group of the most senior judges: the law lords.
The first stage of reform took place in 1999, with the abolition of most hereditary peers from the legislative chamber.
Today it still exercises its legislative function, but its judicial function was transferred to the Supreme Court of the United Kingdom from October 2009.
For most legislation, the Upper House today as a delaying power (that is the power to delay a bill passed by the Commons for maximum one year).
House of Commons
The member of the so-called Lower House (elected, representative body) are elected by direct universal adult suffrage.
By convention the leader of the government is the Prime Minister, he or she is the leader of the political party with a majority of seats in the House of Commons.
In order to fulfil its function as the nation’s executive, the government must be able to implement its policies.
It does this by proposing legislation to Parliament for enactment.

8. THE RELATIVE ROLES OF LEGISLATION AND JUDICIAL PRECEDENT
As we can see, even if the UK legislature has not enacted codes as in civil law European countries, legislation or statute law is extremely important today in the common law system.
Legislation has priority over judicial precedent i.e. in case of conflict, the provisions of a statute must be applied by the courts.
The need for legislation to regulate the welfare state (e.g. laws on education, social security, pensions);
Two major reasons:
The need for legislation to fulfil the obligations of European Union membership (e.g. giving effect to the Treaties in the national system, implementing directives).
JUDICIAL PRECEDENT: means the process whereby judges follow previously decided cases where the facts are of sufficient similarity.
The function of the legislature is to enact law.
The function of the courts is to interpret and apply the law to individual cases which come before them for decision.
Parliament enacts, amends and repeals (abrogates) law, while the courts decide what is the law and enforce it.

9. THE DIFFERENT ROLES OF THE LEGISLATURE AND THE COURTS
In the case of Blackburn v Attorney-General, Lord Justice Salmon explains the roles of the legislature and the courts with regard to legislation:
“As to Parliament, in the present state of law, it can enact, amend and repeal (abrogates) any legislations it pleases. The sole power of the courts is to decide and enforces what is the law and not what it should be – now, or in the future.”
Central to the dispute was the fundamental principle of the British constitution: the doctrine of parliamentary sovereignty.
When deciding a case which is covered by legislation, the function of the courts is to interpret the provisions of the Act by examining the language of the statute to find the intention of Parliament (a process called statutory interpretation) and to apply the law to the specific facts of the individual dispute.
In reality, even where a case is covered entirely by legislation, lawyers must always refer to previous judgements to argue their case.
In this case,
an ordinary citizen,
Mr Blackburn, took proceedings against the state in attempt to prevent Britain from joining the European Community.

10. In What Circumstances Does Parliament Typically Legislate?
To create new law in an area that demands legislative attention, such as terrorism;
In order to change pre-existing law, which may consist of legislation or precedent;
In order to improve and clarify the law*.
If the rules Parliament wishes to change
are contained in legislation
are contained in precedent**
it may specifically amend or repeal the earlier enactment or part of it
it may enact a law, creating a new rule for the future, since legislation has priority over judicial precedent as a source of law
* For Example, in 1968, for the first time in English law, an important sector of the criminal law was regulated by statute: theft (The Theft Act 1968);
** An example is the Contracts (Right of Third Parts).

11. LEGISLATION AS A SOURCE OF CONSTITUTIONAL LAW
Acts of Parliament regulate key matters such as the succession to the throne, electoral rights and the supremacy of the House of Commons over the House of Lords.
Parliament may enact constitutional reforms in response to changes in social or institutional needs*.
When Parliament enacts a constitutional law, like those mentioned above, there is no special procedure, parliamentary majority, text type or language.
All UK laws are enacted following the ordinary procedure and can be amended or repealed at any time. Even constitutional laws are not entrenched: that is, they are not protected by a special legislative procedure.
“Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away.”
In the words of Lords Denning:
* For Example, thanks to the status woman acquired as citizens during the First World War ( ), they were granted the franchise (the right to vote).

12. Parliamentary Sovereignty And The Supremacy Of EU Law
In a recent development, a new category of legislation described as common law ‘constitutional statutes’ was recognised by the courts in the case of Thoburn v Sunderland CC. Lord Justice Laws’ definition is given below:
The Thoburn case arose out of a dispute concerning EU obligations in the national legal system.
“In my opinion a constitutional statute is one which
conditions the legal relationship between the citizen and the state, in some general or overarching manner, or
enlarges or diminishes the scope of what we would now regard as fundamental rights.”
To give effect to the obligations of European Community membership, as 1st January 1973, Parliament passed the European Communities Act Since that time, British courts have recognised the supremacy of European Union law in cases of conflict with domestic law.
Part 1 of the European Union Act 2011, which received Royal Assent on 19th July 2011, introduces 3 types of control before the UK government can ratify or approve a treaty or decision that amends or replaces the treaties [i) primary legislation and a referendum; ii) primary legislation; iii) approval of a motion without amendment in both Houses of Parliament).
In addition, Part 3 of the Act expressly provides that directly applicable or directly affective EU law only takes effect in the UK national legal order by virtue of the European Communities Act 1972 or by virtue of any other Act of Parliament.

15. ! Try now to fill the following table and insert the missing terms studied above in suitable positions in the text

16. task

17. key case law common law. statutes enactments the law reports
secondary legislation
ratio decidendi
the provisions of
to follow precedent
key

18. Vocabulary focus collocation and grammar patterns
approval, Parliament’s approval of a law, to approve a law
bill, to approve a bill
claim, a civil claim
judge, judgment, judiciary, jury
precedent
(legal) rule
sentence of imprisonment
verdict of not guilty
case law, law reform, statute law
defendant
legislature