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vypracovaná otázka (19kový) č. 9 (q_9.doc)

9)

1. Common law – development

It is law, which is common to the whole country – national law in contrast to local law. It is law, which is based on judicial decisions (case law) in contrast to the law, which is made by Parliament (statute law). It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes. It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity.

Prior to the Norman conquest in 1066, the legal system was decentralised. It consisted of local courts, the borough, shire and hundred courts, each applying its own local customary law. The Norman kings could have adopted this system by allowing the baron to whom a region had been given to run the court in that region. Indeed, by taking the office of sheriff and with it the administration of the shire court, some barons tried to do just that. However, the fear that barons would become provincial princes rivalling the power of the King was one of the main reasons, which led to a strategy of judicial centralisation under Henry II. (1154 – 1189). His reign saw the creation of a permanent royal court of King’s Bench as it became known, sitting in London and manned by specialist judges. In addition, the King commissioned official, usually judges of the central court, to travel round a circuit of the regions hearing cases. These regional hearings were known as the Assizes and dealt with both civil and criminal cases. Central control over the law was ensured by the procedure under which the legal issue in a case could first be decided by the royal courts in London, and then the legal ruling would be taken by the travelling judge to the region concerned where the facts would be tried and the ruling applied to the facts found at the trial. This strategy enabled the royal judges to apply common legal principles to most parts of the land – hence the term common law, which is still used to describe the judge-made system of law.

Common law or case law systems differ from Continental law in having developed throughout history. Customs and court rulings have been as important as statutes. Judges do not merely apply the law, but in some cases they made law since their interpretations may become precedents in later cases for other cases to follow.

Judges are not free to reach any decision they wish to because they are bound to follow certain rules – the principle of stare dicisis ’stand by what has been decided’ – purpose: to achieve certainty and consistency in the law, but the system should be sufficiently flexible to allow the law to develop and adapt to conditions.

The decision or judgement comprises two parts:

Ratio decidendi – binding in later cases, the principle of law on which the decision is based

Orbiter dictum – merely persuasive, it helps judges to reach a decision in future but they are not bound to follow it, the judge speculates about what his decision would or might have been if the facts of the case had been different.

2. Defences in criminal law

If and mens have been proved, a defendant may still avoid guilt if he can show he has a defence – a reason the court should excuse his act. Different systems of law recognise different and usually limited sets of defences. Form example, English law sometimes allow the defence of duress – being forced to commit a crime because of threats that you or someone else will be harmed if you don’t. Duress may be used as a defence actus against the charge of murder as a secondary party (helping the murderer) but is not available if the defendant is charged as the principal murderer.

Another defence is that of insanity. In most countries a person cannot be found guilty of a crime if in a doctor’s opinion he cannot have been responsible for his actions because of mental illness. But this defence requires careful proof. If it is proven the defendant will not be sent to a prison, but instead to a mental hospital.

It might be argued that a person is not responsible for his actions if he is intoxicated – drunk or under the influence of drugs. In fact, an intoxicated person may not even know what he is doing and thus lacks mens rea. However, in Britain and many other countries, there is a general principle that people who knowingly get themselves intoxicated must be held responsible for their acts. Consequently, intoxication is not a defence.

Nearly every system of law recognises the defence of self-defence. In English law, a defendant can avoid guilt for injuring someone if he can convince the court that the force he used was reasonable to protect himself in the circumstances. In some countries, shooting an unarmed burglar would be recognised as self-defence, but in other it might be considered unreasonable force.

The concept of defence should not be confused with that of mitigation – reasons your punishment should not be harsh. If a person has a defence, the court finds him not guilty. It is only after being found guilty that a defendant may try to mitigate his crimes by explaining the specific circumstances at the time of the crime.