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El Common Law — Transcript

by Mauricio Alvarez Nuñez · 11,909 words · 1,788 segments · language en · Watch on YouTube

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0:00I was saying that the term "common law"
0:02has three meanings. One of them is the
0:05law that emerged in England in the 11th
0:07century. The second refers to specific
0:12decisions by ordinary courts, the
0:14common law courts, that create
0:16jurisprudence, that create case law.
0:20And the third meaning is that of one of
0:22the great families of law. Yes. Okay,
0:28so on this map you will see, uh, this
0:31last of the three meanings of the term
0:34common law I was just referring to. In
0:38pink, you have marked the countries
0:40that belong to the common law tradition
0:42, and I am going to tell you about them
0:45right now. They are the United States,
0:47well, England and Wales, obviously,
0:49because that was the origin and the
0:51cradle of common law. Ireland too, uh,
0:54Northern Ireland, Scotland is a bit of
0:57a special case because it's a mixed
0:59system that blends elements of common
1:01law and also of the Roman tradition.
1:06And, of course, the United States, a
1:08large part of Canada, Australia, New
1:11Zealand, India, Pakistan, and some
1:13other countries in Africa and Asia,
1:15which were once British colonies and
1:17inherited the legal system from England
1:20and then, over time, developed their
1:22own system and legal order. But the
1:26base is, of course, common law; that is
1:28why the third meaning I mentioned a
1:30moment ago of the term refers to this
1:32legal family, one of the great families
1:34of law. It is a group of legal systems
1:37that share a common origin. And in blue
1:41on the map, for those who can see it,
1:44the other great family of law is the
1:47Romano-Germanic or Roman-based system,
1:50which is, well, all of continental
1:52Europe, almost all of Latin America,
1:55Central America, Africa, as well as
1:58Russia and Asia, and many countries
2:01that have Roman law as the basis of
2:03their legal systems. And then there are
2:09some countries marked in maroon, or
2:11some geographical areas (because not
2:13all are countries), that have what is
2:16called a mixed system, which is
2:18straddled, a blend between the
2:19Romano-Germanic system and the common
2:22law system. For example, the
2:25French-speaking part of Canada, which
2:28has a strong common law influence but
2:30also inherited part of French law; or
2:33Louisiana, the state of Louisiana,
2:35which in its internal, state law, is
2:37quite a bit more civil law than common
2:40law; or areas of South Africa and so on
2:42. Yes. Well, those are the three things
2:46that an English or American jurist
2:48might be referring to when they speak
2:51of "Common Law." As you can see, the
2:53term isn't that simple to define
2:55because it can refer to different
2:57realities. Well, I'm going to skip this
2:59. I want to tell you a little bit about
3:02the history of this legal tradition,
3:04just a little so you can understand it
3:06better, because when you know the
3:07origin, where things come from, it's
3:09easier to understand them. Well, this
3:13gentleman I've put here on the slide is
3:16William the Conqueror. Well, for those
3:21who can't see it, you aren't missing
3:23much because he's a rather
3:24angry-looking man, with a very serious
3:26face; it's a classic medieval depiction
3:28. William the Conqueror played a
3:31transcendental role in the origin of
3:32Common Law, without meaning to. Why?
3:35Well, because this man was the Duke of
3:37Normandy. At the beginning of the 11th
3:40century, he was Duke of Normandy, a
3:42duchy in northern France, and as you
3:44know, he was a vassal of the King of
3:46France. He lived quite well there in
3:48his duchy, but he aspired to more. And
3:51so he had reached a pact with the
3:53English king so that, upon his death,
3:54he would also cede the crown of England
3:56to him. It so happened that, as things
4:01often go, once the English king died,
4:03his successors didn't honor the deal
4:05and proclaimed an Englishman to inherit
4:08the kingdom of England. So this William
4:13got angry, logically, and gathered his
4:15troops to set sail from Normandy. He
4:19took all his troops and his ships,
4:20crossed the English Channel, and
4:22arrived in England. And he faced the
4:25English troops at the Battle of
4:27Hastings in the year 1066, as it says
4:30there, with such fortune, with such
4:32luck, that he defeated the English and
4:34became the King of England. Look how
4:37well that turned out, what luck, what a
4:39stroke of fate, going from a Duke in
4:41Normandy, subject to the King of France
4:44, to becoming king of a country, right?
4:46To the king of an entire country. So,
4:48well, clearly, but one thing is to
4:50conquer a country, to conquer it by
4:52force of arms, to invade it, as William
4:54the Conqueror did with his troops, and
4:56another thing is to govern it. Ah, my
4:59friend, that is something else entirely
5:00, isn't it? You conquer it, you're the
5:03king, yes, they name you as such, but
5:06governing it is harder because England
5:09was a complex, highly stratified
5:11country, with poor land communications.
5:16Romanization hadn't taken hold there.
5:19Therefore, well, there was a mix of
5:21legal systems in different parts. The
5:24church had a lot of power and had its
5:26own courts. The nobles in certain parts
5:28of the country also administered
5:30justice as they saw fit. And so, in
5:34that attempt to govern the country and
5:36to harmonize it, and to ensure there
5:39was real submission to the decisions
5:41made by the Duke of Normandy—from
5:43then on, King of England—well, this
5:46monarch, of Norman origin, and his
5:48successors began to implement a series
5:51of administrative measures that were
5:53not intended to create the Common Law,
5:56but only to politically control the
5:58country, but in practice, what they
6:01managed to do was create a new legal
6:04system that was completely different
6:06from the European one being forged in
6:09continental Europe at that time, and
6:12which ended up being called...How did
6:14they do it? Well, there are four main
6:17elements that are believed to have been
6:19the defining or most important ones
6:21when creating this new legal system,
6:23and you have them here on the screen.
6:26The Curia Regis—Curia Regis in Latin
6:29—the itinerant judges, the system of
6:32itinerant judges that was set in motion
6:35a few years later by another Norman
6:37monarch, Henry II, the creation of the
6:40popular jury tribunal, jury trials, and
6:43the technique of precedent, the
6:46development of the technique of
6:48precedent as a way of consolidating the
6:51law. Yes. Well, and why are these four
6:55elements so important, even though they
6:57had no intention of creating their own
6:59system, and were simply administrative
7:01measures that King William and his
7:03successors were putting in place to
7:05dominate and control the country? Well,
7:07I'll explain it to you a little bit,
7:09okay? Well, the Curia Regis, why is the
7:11Curia Regis so important? This was a
7:13royal council. When the king arrived in
7:15England, the Duke of Normandy, when he
7:17arrived in England and took over the
7:19country, he created a council of nobles
7:20. Yes. Allies, right? Whom he tried to
7:24keep close, right? English nobles,
7:27right? Well, he rewarded them with
7:29certain perks, with land and such, in
7:31order to gain their favor, keep them
7:33close, and also have them help him
7:35control the rest of his vassals. And
7:38that Royal Council initially uh brought
7:40together all the powers, absolutely all
7:42the powers of the State: political
7:45power, judicial power, administrative
7:47power, the legislative power to make
7:49laws, everything, everything was
7:51concentrated in the king, right? And
7:54everything was in the curia regis, in
7:56that royal council. But little by
7:59little, over time, they began to break
8:01away from there, as you can see in this
8:04chart, well, practically almost all the
8:06legislative, judicial, and executive
8:08institutions, many of which still exist
8:10in England today, came out of the curia
8:12regis; they were offshoots. The king
8:15said, "Well, now we'll take this matter
8:17of the itinerant judges from here.""
8:18Come on, now I'll explain what that
8:20consisted of.""Now we are going to
8:22branch off from the curia regis, since
8:23we are here all day holding trials and
8:25courts.""We are going to create a
8:28specific court for fiscal matters, then
8:30a specific court for civil affairs, and
8:32then a specific court for criminal
8:34matters, and so on, right?" Parliament,
8:37the House of Lords, was also initially
8:40an offshoot of the Curia Regis. In
8:43other words, this body was super
8:45important because from here came the
8:47majority of the political institutions
8:50that still subsist in England today—
8:52some do not, but others do. Well,
8:56returning to this, I wanted to say a
8:58few words about the itinerant judges
9:03who had a basic role in the creation of
9:06common law. At first, the first 50, 60
9:10years, all the courts were in
9:12Westminster near London. Yes. Where the
9:16court of the Norman kings was settled
9:18in Westminster. Right. And there was
9:20one court there, or there were several,
9:22but they were all there. So, at a given
9:26moment, the king realized that he could
9:28not decide all the issues of his
9:30subjects from Westminster, and so, he
9:32organized—this was already in the
9:34time of Henry II, a few years after the
9:36Norman Conquest—he organized a series
9:38of regional circuits; regions, he
9:40divided the country into regions and to
9:42each of those circuits he sent a judge
9:44from Westminster who would go there on
9:47his little donkey, I suppose with some
9:49kind of retinue that would help him in
9:51his mission. And, for a time, he would
9:54travel his circuit and go about
9:56dispensing justice in the name of the
9:57king, because justice always proceeded
9:59from the king. But these circuit judges
10:03would travel their circuit,
10:04administering justice, hearing cases,
10:07resolving issues of land, inheritance,
10:09contracts, the normal matters, right?,
10:11that a judge attends to in their
10:13circuit. And then they would return to
10:17Westminster; they were itinerant, they
10:19were not based in the region, in their
10:21assigned circuit, because the king
10:23thought, and rightly so, that this way
10:25they would be less subject to political
10:27pressure, to local pressure from the
10:29local bosses of the day, right? If they
10:32didn't live there, well, they would be
10:33less subject to that, they would be
10:34more impartial. And indeed they went,
10:37did their tour, administered justice,
10:39and after a while, they returned to
10:41Westminster. Uh, and, and what did they
10:43do when they returned? This is the most
10:46interesting part: they would meet among
10:48themselves, uh, and discuss the cases
10:50they had been judging. "Oh, well, in
10:54this area, this dispute has arisen
10:55related to an inheritance of some land.
10:58" They would discuss the cases, share
11:00among themselves the solutions they had
11:03reached in certain cases, uh, and reach
11:05a consensus: "Oh, well, this solution
11:08is good, I like it, I'm going to apply
11:10it when I have a similar case." And
11:13that right there is the beginning, this
11:15is the most primitive origin of
11:17judicial precedent. These judges would
11:21administer justice in the name of the
11:22king with the few tools they had: a
11:24couple of laws, some Norman customs,
11:26and also local custom. And with those
11:30meager resources, they would administer
11:32justice in the king's name, and upon
11:33meeting, they would share those
11:35solutions and that law, and those legal
11:37solutions to the cases presented to
11:39them would start to become common
11:40throughout the kingdom. Hence the term
11:44"common law," yes? This is the origin
11:47of the common law, common solutions
11:49that these itinerant judges would
11:50provide as they administered justice in
11:53the name of the king in each of their
11:55assigned circuits. Well, another very
11:58important institution was the jury
12:00trial, uh, which, well, no one quite
12:02agrees on what its origin is. Some say
12:05there are certain institutions of
12:07ecclesiastical justice that were
12:09similar, and so on. Well, the fact is
12:12that the Norman monarchs also
12:14established, they initiated the system
12:17of trial by jury, which today is also
12:20one of the defining characteristics of
12:22common law systems, along with
12:24precedent as a technique for unifying
12:27doctrine. Uh, the precedent, this thing
12:31I was telling you about judges
12:33returning to Westminster, sharing their
12:35solutions, the solutions, the decisions
12:37, the rulings, therefore, that they had
12:39issued in the cases brought before them
12:41for trial, were being recorded in books
12:43, uh, which were initially written in
12:45French, because for 200 years, since
12:47they were Normans, well, the official
12:49language of the court was French; later
12:51they were written in English. At first
12:55they were called Yearbooks and later
12:57Law Reports. In these Law Reports or
12:59Yearbooks, those solutions were being
13:01recorded, the most important ones,
13:03logically, from the most significant
13:05cases that the itinerant judges were
13:06resolving and also from the courts
13:08based in Westminster. And, uh, little
13:11by little, well, those decisions began
13:14to be used to resolve new cases, and
13:16over time this technique of judicial
13:19precedent takes hold, based on the
13:21Roman maxim of*stare decisis*, that is:
13:24"what is already decided will not be
13:26decided again," uh, which is used as a
13:29technique to go about creating law.
13:32Understand that at the beginning these
13:33judges practically had no laws; it is
13:35not like today where parliament is
13:36legislating every other minute. At that
13:39time, the king with his court would
13:42make a law every 5 years or six or 10,
13:44and the judges needed a doctrine, they
13:47needed a body of legal solutions for
13:50the cases. So, from those practical
13:53solutions that they give to each
13:55specific case and are compiled in the
13:57Yearbooks, the precedent emerges as a
13:59technique and a tool for reusing those
14:01solutions for the new cases that are
14:04being presented. Well, these are the
14:08foundations of common law. Uh, these
14:11are the fundamental ideas and I want to
14:13tell you about something else before
14:15continuing that also had great
14:17importance, which is the concept of
14:20equity. Which surely you have heard of,
14:23surely you have listened to, someone
14:25has mentioned it to you at some point.
14:29Well, Anglo-Saxon equity is not the
14:32same as our equity. When a jurist
14:37trained in civil law or Roman-based law
14:41thinks about or is told about equity,
14:44it is normal that due to our training
14:47we go to that Aristotelian
14:49philosophical idea of equity as justice
14:53, as kindness, as the balance between
14:56the parties. Yes, for an Anglo-Saxon
14:59jurist this is not the case. Uh, equity
15:02is an institutional concept. Why? Well,
15:05because uh the Court of Equity was a
15:07very important institution within the
15:09Common Law that emerged around 1474.
15:13The date of origin is not very clear,
15:16though the end date is; it is thought
15:18to have emerged in the late 15th
15:20century as an extended court of the
15:22Curia Regis, which I mentioned earlier.
15:26Yes, at the beginning, the three
15:28fundamental courts—I’ll go back a
15:30little so you can see—the three
15:33courts based in London that appeared
15:35first were the Exchequer, which was a
15:38tax court. This was the first one that
15:41arose, as you can see there, almost the
15:44first division, because it is well
15:45known that the first thing rulers have
15:48always cared about is taxes. Let no one
15:50deceive us, the whole business of
15:52justice and such, that comes later, but
15:53taxes come first. We’re going to
15:55collect, we’re going to raise revenue
15:57from the population, and then, if
15:58there's anything left, we'll build
15:59roads and maybe prevent people from
16:01killing each other. But the first thing
16:03is, in fact, the fiscal; the word "
16:04fiscal" in Spain and in our language
16:06arises from the fiscality of the one
16:08who collected the tributes, right? For
16:10the king. Well, this was the first
16:11court to emerge, the Exchequer. Then
16:14the Court of Common Pleas, which was a
16:16court dedicated to civil matters,
16:18especially contracts, and the King's
16:21Bench, which was the King’s court or
16:24the King’s bench, a court intended
16:26for criminal matters. Yes? So, for
16:30quite a few years, even several
16:32centuries, these three courts were the
16:35only ones that existed, plus the work
16:37of the itinerant judges. There came a
16:40time when these courts operated in a
16:42very rigid manner and only accepted
16:44certain cases that were already
16:46provided for in the forms of action, in
16:48what they called the writs. If there
16:51was a specific writ to be able to solve
16:53your problem, you could go there with
16:54that piece of paper and ask them to
16:56solve your issue. If your problem was
17:00not written down, not pre-formulated in
17:02that basic writ formula, there was
17:04nothing to be done. Forget it, because
17:06you couldn’t go to the courts; they
17:07wouldn’t even pay attention to you.
17:09So, there were some citizens who
17:11appealed to the king's conscience. Well
17:13, since the king is the supreme source
17:15of justice, he has to help me resolve
17:17this problem. And so they requested an
17:18audience with the king; they went to
17:19the king. And naturally, the king had
17:21to grant an audience once a month, or
17:23whenever, to his vassals to see what
17:25problems they had. And so, when he
17:27realized that there were many problems
17:29that were not capable, that were not
17:31being resolved by the ordinary courts,
17:33the common law courts, which are these
17:36three, well, he saw there were many and
17:38said to the chancellor: "Look,
17:39Chancellor, you take care of this, okay
17:41?" And so he gave him a specific court
17:44of his own to attend to them. This is a
17:46rough explanation, but it's so you can
17:48understand me, alright? He assigned him
17:52a specific court, which was the Court
17:54of Chancery, so that he could decide on
17:56those cases that did not easily fit or
17:58find a place in the ordinary courts, so
18:01that he could decide according to his
18:03own judgment and his own conscience.
18:07The chancellor was usually a cleric, a
18:09religious man who was also a spiritual
18:11and political advisor to the king, and
18:13so he would decide according to his
18:14conscience and decide in equity.
18:18Therefore, without being subject to the
18:20rules and writs of the ordinary courts.
18:22That is why the Court of Chancery,
18:25which in principle was the chancery
18:28court because it was run by the Lord
18:31Chancellor, ended up being known as the
18:34Equity Court. And this court, the most
18:38important thing about it is that it
18:39functioned in parallel as a
18:41jurisdiction alongside that of the
18:42ordinary courts for 400 years. It
18:45functioned in England as an independent
18:47jurisdiction; it did its own thing, it
18:50wasn't subject to procedural rules,
18:53codes, or the precedent of the ordinary
18:56courts, but rather it created its own
18:58rules based on equity and other matters
19:01that would be too long to analyze,
19:04along with a series of maxims and so on
19:07. And so, throughout 400 years of
19:10history, it developed legal solutions
19:12different from those developed by the
19:15ordinary courts, some of them very
19:17innovative, more flexible than those of
19:19the ordinary courts and more
19:21interesting for the subjects who had
19:24certain problems. The Equity Court did
19:26not deal with criminal matters. Mind
19:28you, this court, this Court of Chancery
19:32, only had jurisdiction over civil
19:35matters. But well, in those 400 years,
19:39it developed a lot of legal doctrine
19:42that later, in 1873, when that court
19:45was suspended, or rather, integrated as
19:48one more division of the High Court of
19:51Justice, all those equity solutions
19:53were absorbed by the ordinary courts
19:56and began to be applied by them as well
19:59. So we can say that case law,
20:02Anglo-Saxon jurisprudence, has two
20:05sources. One is common law in lowercase
20:08, those decisions from the ordinary
20:09courts I just told you about, and the
20:11other is equity, which are the
20:13decisions from the Court of Chancery.
20:16In the end, this court was suspended
20:18because, over time, it ended up
20:20becoming very rigid. Ah, its decisions
20:23were not exactly too liberal or free
20:25either, without being subject to many
20:28rules. The proceedings lasted years,
20:31sometimes generations, and it proved to
20:33be inefficient, so it was suspended and
20:35integrated into the ordinary
20:36jurisdiction. Well, as I was saying, so
20:40you understand, I hope that now, eh,
20:42it's easier, a little bit easier to
20:43understand this, which is one of the
20:45classic questions our students always
20:47ask in our courses. What are the
20:49sources of law in the common law? Well,
20:51there are two. Statute law, which is
20:54legislated law, the law made by
20:55legislative chambers, in its time by
20:57the king and today by parliaments, laws
21:00, what we know as acts and regulations,
21:02and case law. Case law, which is
21:05binding precedent, has two sources:
21:07common law and equity, okay? Case law
21:10is formed by the decisions of the
21:12common law courts plus the decisions of
21:14the Court of Chancery, which were
21:16independent for 400 years. Right? Well,
21:20if you have any little doubts or if it
21:23hasn't been clear, we can have a round
21:25of questions later. I see some very
21:28dear and well-known people here on
21:29Facebook, and I'd like to take this
21:31opportunity to greet them. Tony, for
21:32example, and a few others I just saw.
21:36Shall we continue? Yes, all good.
21:39Alright. Oh, yes, I wanted to mention
21:41my friend Sir William Blackstone, who
21:44is a key figure, eh, a milestone of the
21:47common law that you must know, and. And
21:50it's interesting because, eh, Sir
21:52William Blackstone, let's say he made a
21:54compendium, the first existing
21:56compendium of common law; they were his
21:58Commentaries on the Laws of England,
22:00his comments on the laws of England,
22:02which are a compilation of the classes
22:04he taught at Oxford. William Blackstone
22:07was a mediocre lawyer with very little
22:09luck; he started as a lawyer. He
22:12trained at the inns, those where future
22:19jurists studied, but he didn't succeed
22:21in legal practice. And then, well,
22:24someone suggested to him—he must have
22:25had a contact, he also worked in the
22:27archives at the University of Oxford—
22:29and someone suggested, "Hey, why don't
22:31you teach classes here at Oxford about
22:33English law, about the common law?" You
22:35might wonder if this wasn't done before
22:37Blackstone, right? The funny thing
22:39about universities, isn't it? For about
22:42400 or 500 years at the University of
22:44Oxford in England, when someone went to
22:46study law, they were taught Roman law.
22:49That thing universities have of always
22:51being up to date, well, that's how it
22:53was, right? Roman law was studied in
22:55English universities. Why? Well,
22:57because it was the law that an educated
22:59person was supposed to know. It had no
23:01application whatsoever in England. What
23:02does it matter? That doesn't matter,
23:03right? If in the end, someone goes to
23:05university to know, to be educated,
23:06until someone realized and said, "Man,
23:08Blackstone, William, why don't you come
23:10here? Teach them what the law that is
23:12actually applied in England is like."
23:14And of course, it was a tremendous
23:16success. When a university starts
23:18teaching something practical, well,
23:19it's a smashing success. His classes
23:22had a spectacular reception, huge
23:24success. So, he became an educator, a
23:28very reputable, very well-known
23:30professor. The first one who started
23:33teaching outside the Inns of Court,
23:35right? Those inns where lawyers were
23:38traditionally taught and trained in
23:40England. And as a result of those
23:43classes, he wrote Commentaries on the
23:45Laws of England, which, as you see, the
23:47publication date is prior to American
23:49independence. Eh, these books were also
23:52published in Philadelphia just a few
23:54years later, in 1771 '72, and they also
23:58had a smashing success. Thomas
24:01Jefferson and many of the American
24:03founding fathers who were trained as
24:05jurists devoured them because it was
24:07the first compendium, the first general
24:09manual on the law that existed. And so,
24:12well, it was a smashing success, right
24:14?,with critics and the public, as they
24:16say. It is important to know Blackstone
24:18. Well, and we have the second part.
24:21I'm going to leave you, if you want, a
24:23small space for questions so I can
24:24drink some water if you don't mind. So,
24:27you have the chat at your disposal and,
24:30before continuing to the next part,
24:32I'll open the chat and please write
24:35whatever you want there or you can also
24:38send it to me via Facebook. I will also
24:41try to check the Facebook screen to see
24:44if there are any questions, and
24:45likewise the YouTube one to be
24:47attentive to whatever you want. If
24:49everything is clear, then I'll continue
24:50. This thing about talking to oneself,
24:58well, it has its peculiarities. Well,
25:02someone tells us that it's helping them
25:05review their university notes. Okay. Ah
25:10, sure. The question, how to translate
25:12it? How is it worth it? Well, a great
25:16question I haven't answered yet, by the
25:18way, excuse me. I mentioned that "
25:20common law" is used for those three
25:22things, to refer to those three
25:24concepts. So, depending, uh, depending
25:28on where you have to translate, I
25:33almost never translate it; I almost
25:35always leave it in the original, in
25:37English. And if the context is general,
25:39where one is talking about one of the
25:41families of law, well, I put the "
25:43common law" family of law. Or the "
25:45common law" legal tradition or
25:46something like that. All right? If the
25:50context requires a small explanation
25:52because it's talking about the
25:53decisions of the ordinary courts, well,
25:55I put the decisions of the English
25:57ordinary courts, in parentheses like (
25:58common law). Anyway, you will also have
26:02to adjust this to the context, our dear
26:04context that we translators always talk
26:06about, right? So, it must be adapted to
26:09the context, but my general
26:10recommendation is not to translate it.
26:12The normal thing is that the target
26:14audience for your translation will
26:15almost always be someone who at least
26:17has some idea of what common law is.
26:19Therefore, it is almost better to leave
26:21it as is. Okay. They are asking here.
26:26Ah, okay. What does "case law" mean?
26:32The link. What does the link between
26:34common law and equity mean in case law?
26:36Well, in the common law, "case law,"
26:38which is jurisprudence—this would be
26:41a slightly, well, a slightly generous
26:45way of translating it because it is not
26:48exactly the same as our jurisprudence,
26:50but "case law" would be binding court
26:52jurisprudence that is formed by
26:54decisions of the common law courts,
26:56that is, common law in the strictest
26:58sense of the word that I explained at
27:01the beginning: decisions of the
27:03ordinary courts that create law, plus
27:05the decisions of the Court of Chancery,
27:07which also created law in the decisions
27:10that were issued in the Court of Equity
27:12. So, those two sources, the decisions
27:15of the ordinary courts—common law
27:17courts—plus those of the Court of
27:19Equity, form a huge body, a set of
27:21legal solutions to specific cases that
27:23is called "case law," which we call "
27:26case law." I also care—I am going to
27:30make a small aside at this moment
27:33because it is also important to me that
27:36you understand how common law is
27:38different from Roman-based law. And
27:41what I have just commented on is key.
27:44Anglo-Saxon law, the common law, is
27:46formed in this way, as you have seen,
27:48with the decisions of the ordinary
27:51courts in Westminster, plus the
27:52decisions that itinerant judges gave to
27:55cases, which they then shared and
27:57reflected in the law reports. That is
28:00to say, it is a law that starts from
28:02the specific case, starts from a case,
28:05starts from the fact, and from there it
28:07extrapolates a general decision, it
28:09extrapolates and creates a theory. Yes.
28:14The Roman-based law, the law we know in
28:16Europe and Latin America, did just the
28:18opposite. In Europe, the Digest was
28:21discovered. In the 11th century,
28:23Irnerius and the glossators of Bologna
28:25discovered the Digest, which was
28:27Justinian’s compilation of classical
28:28Roman law. Thanks to Justinian, this
28:32emperor of the Eastern Empire, he put a
28:34lot of people to work for a few years,
28:36a commission, he created a commission
28:37of jurists who compiled classical Roman
28:39law and wrote it down in several
28:41volumes. One of those volumes was the
28:45Digest, which was lost in the library
28:48of some European monastery for hundreds
28:51of years. And in the 11th century,
28:54Irnerius or someone else discovered it
28:56and found that it was a marvel. The
29:00Digest is a compilation of the entire
29:02legal theory of classical Roman law.
29:05And what did they do? Well, since it
29:07was the era of the formation of
29:09European states, the formation of
29:11European states that also needed to
29:13create their own law, they used those
29:15theories of classical Roman law to
29:17apply them from theory to practice, to
29:19practical cases, to create concrete
29:21laws, to resolve cases. In other words,
29:24our legal reasoning has always been
29:25like that ever since. Now we create
29:28laws in Europe that judges must apply,
29:30whereas in the common law, the origin
29:33has been the opposite. Problems are
29:36solved in practice, and from those
29:38problems, general theories are
29:39extrapolated, which are then reused
29:41through the technique of precedent to
29:43resolve similar cases. That is why it
29:46is not strange to say that an
29:47Anglo-Saxon jurist thinks in a very
29:49different way than we do, right? Well,
29:53I will try to continue answering
29:54questions that I see around here. Okay.
30:01Ah, Luisa from UCO. Hello, Luisa, it is
30:04a pleasure to greet you. It's great
30:05that you are here. How do you translate
30:07equity in contracts? Okay, uh, well,
30:09another thing. Of course, the
30:12institutional concept of equity is not
30:14translatable because it is not our
30:16equity, it is not that Aristotelian and
30:18philosophical idea of equity that we
30:19have. Anglo-Saxon equity is an
30:21institutional concept. So, if it can be
30:24translated in a way that makes sense,
30:27especially when it forms an expression
30:29like "equity of redemption" or another
30:31equity, another equity-based solution,
30:33you translate it and then leave the
30:35original in English in parentheses. And
30:39if not, I usually write "Equidad" with
30:41a capital letter to foreignize it in a
30:44way, so the reader sees that it isn't
30:47our equity—our goodness, our justice,
30:49our equality. Okay? But it is
30:52complicated to translate. Yes, it is
30:54quite complicated. I always say that
30:57when we translate from common law to
30:59Spanish, or from English to Spanish, in
31:01legal matters we are trying to compare
31:03apples and oranges, and that difficulty
31:05of comparing apples and oranges is
31:06exactly this, right? Oh, my friend
31:09Pablo, who is a medical translator, I
31:11always laugh at him. "You've got it
31:13easy, because translating medical stuff
31:15is a piece of cake." A lung is a lung
31:17in the United States, in Japan, and in
31:20Spain. You just have to find the word,
31:22but we don't. We translate things,
31:24different legal realities, different
31:26social realities, right? Well, and "
31:28statute," for those asking here, is the
31:31law. It is what we know as written law,
31:34emanating from or approved in a
31:35parliament, in a legislative chamber.
31:40How can we translate "Roman civil law"?
31:43Well, I don't know exactly what the
31:45question is, but it is true that the
31:47Anglo-Saxons call our legal system "
31:49civil law." We don't call it "civil law
31:52"; we call it Romano-Germanic based law
31:53. Well, these things that academics
31:56have, who named it that way, although
31:59it is 99%Roman and a little Germanic,
32:01but well, we call it Romano-Germanic
32:03law and they call us "civil law." But I
32:07don't like that expression because we
32:09have another concept that we call "
32:11derecho civil." For us, "derecho civil"
32:15is a branch of law, it is just one
32:17branch, it is a very important part of
32:19private law that deals with matters
32:21like family, parental authority, child
32:23custody, marriage, inheritance, private
32:25contracts, and things of that nature.
32:31Common law has influenced many other
32:33countries not mentioned on the map. Yes
32:34. And in fact, it has more and more
32:36influence. They are asking me if it has
32:38had great influence. It has had it,
32:41because although they are different
32:43systems that have had a distinct origin
32:45, they have never been totally isolated
32:47; there has always been an influence,
32:49and specifically, current Anglo-Saxon
32:51contract law has a gigantic, enormous
32:53influence all over the world. Well, it
32:58goes without saying that the United
32:59States is the world's leading economic
33:01and legal power, and one of the
33:02services it sells most are legal and
33:04financial services to the rest of the
33:06world, right? Okay, I'm being asked
33:13about case law, they tell me it's
33:15jurisprudence of a binding nature,
33:16taking into account that not all
33:18jurisprudence has binding force. That's
33:20true. I will explain that in a little
33:22more detail later, okay? Only the
33:24jurisprudence of higher courts is part
33:27of case law. I'll explain that later.
33:32Okay. Any more questions? I'm reading
33:35here. Ah, where does the jurisprudence
33:41in the Ibero-American branch of the
33:43Romano-canonical legal tradition come
33:45from? Well, the jurisprudence in each
33:47country comes from the courts of those
33:48countries. Therefore, it is the courts
33:50of each country that create it. And
33:52what is the reason why Anglo-Saxons
33:55call our law "civil law"? Well, I have
33:57no idea, honestly, I don't have the
33:59faintest idea. Why do they call us "
34:01civil law" when civil law is just one
34:03part? It is not our entire legal system
34:04. I don't know. Someone comments here,
34:09"I've had to hear lawyers say, 'I have
34:10to look over the qualities of the case.
34:12'" I don't know what that is. I'm sorry
34:15, but I don't know what it refers to.
34:19Someone mentioned here on Facebook that
34:21the Equity Court lasted 400 years and
34:24that case law is taken from common law.
34:27Forgive me, but I can't read it well on
34:29Facebook, I'm sorry, but well, I will
34:31try to answer your questions later.
34:35Let's move on to the second part now,
34:36if you don't mind, okay? Eh, let's
34:38start, let's go back to this, resume,
34:40and then we'll have another space for
34:41questions at the end. And I am going to
34:51try to explain some things now,
34:53whatever I can, about the current legal
34:55and political system in the United
34:57Kingdom. How are we doing on time? Well
34:59, in the United Kingdom, there are four
35:04basic institutions: the monarchy, the
35:06parliament, which would be the
35:08legislative power, the judiciary, and
35:11the executive. Yes, those four.
35:13Normally, in all current developed
35:15countries, Western democracies, we talk
35:17about the three branches of power,
35:19right? The legislative power, the
35:21executive power, and the judicial power
35:23. Here in England, we must include the
35:26monarchy, no doubt about it, because it
35:27is one of the great powers of the State
35:29, even if only nominally. Hm. The
35:32monarchy was the origin of everything.
35:34As you have seen, it was the Norman
35:36monarchs who, with their decisions,
35:38caused the common law to emerge. It was
35:42the monarchs who held all the power,
35:44all of it, absolutely all the power in
35:46their hands, and it was the monarchs
35:48who, bit by bit, let it go, creating
35:50courts, parliament, different chambers,
35:52and so on. In other words, everything
35:55comes from the monarchy. And today,
35:57well, the Queen of England, this very
36:00discreet lady you see here in the image
36:02in that neon green dress, well, she
36:04still nominally holds at least a few
36:06powers. Well, she remains the head of
36:09State, she remains the head of the
36:11Commonwealth, she is also the head of
36:13the Church of England, because as you
36:15know, of course, England has its own
36:17national church, it's fantastic. And
36:20she is also the commander-in-chief of
36:21the armed forces. And she maintains
36:28something called the royal prerogative,
36:31which is a remnant, nowadays just a
36:33remnant of the once-omnipotent powers
36:35held by the English monarchy. Well, the
36:40royal prerogative is a series of powers
36:42maintained by the Crown to appoint the
36:45prime minister, to open and close
36:47sessions of parliament, to sign
36:50international treaties, and for many
36:52other things. Those decisions or those
36:55royal prerogatives, well, nowadays they
36:58are sometimes exercised directly by the
37:01Queen and other times exercised by the
37:03executive by delegation from the Queen.
37:07I won't dwell on this too much because
37:08it would take too long. Right, let's
37:12look at the three powers of the State,
37:14the executive, right? The executive.
37:16Well, here we have our friend Boris
37:18Johnson, who we hope is doing well, who
37:20it seems was in the emergency room in
37:22the ICU with the coronavirus, and we
37:24hope and wish that he is already
37:26recovered. He, however, I believe said
37:28that he was in favor of us all getting
37:30infected, right? And so we would become
37:32immunized. Well, sometimes you have to
37:35be careful what you wish for because it
37:36might come true, but in any case, we
37:38wish him a speedy recovery. The prime
37:42minister is the head of the executive,
37:45and the executive is, as you know, that
37:47power of the State responsible for,
37:50well, not dictating laws, but enforcing
37:53them and launching reform projects and
37:56development projects for the country.
38:01The executive branch is formed by the
38:03prime minister, obviously, and by
38:05several ministers who make up the
38:08cabinet. The executive is also formed
38:12by a bunch of other ministers who are
38:14not part of the cabinet because the
38:17cabinet is a smaller group of those
38:19ministers. In Boris Johnson's case I
38:23haven't seen it, but when Theresa May
38:25was in office I bothered to look at the
38:27government website and there were 104
38:28ministers. I'll explain a little more
38:31about that now. So, there are many
38:33ministers, but those who make up the
38:35cabinet, the core of the government,
38:38let's say, there are about 20 or 24 of
38:40them and they meet in what is called
38:42the cabinet, the executive cabinet.
38:45They meet at 10 Downing Street, where
38:48the prime minister lives, and they are
38:50the ones who make the decisions. Those
38:5320 or 24 ministers who make up the
38:55cabinet are the representatives, the
38:57heads of the most important departments
38:59: justice, defense, foreign affairs,
39:01education, health, all these things,
39:03right? The Treasury. Well, the prime
39:06minister is also the head of the
39:07Treasury. They are also very strict
39:10about the fact that...the Treasury must
39:14always be in the hands of the most
39:15powerful. And well, the executive
39:17branch today, as I was telling you,
39:20also has all the powers granted by
39:22Parliament and some powers in the name
39:24of the Queen through that royal
39:26prerogative. Well, the members of the
39:29executive branch, it is important to
39:31mention this, must also be
39:32parliamentarians, MPs, members of
39:34Parliament. This is designed this way
39:38because there is a principle and a
39:40maxim which is accountability; that is,
39:42all members of the government must be
39:44able to answer for their actions before
39:46Parliament, and to answer before
39:48Parliament, they must be members of
39:50Parliament so they can go there when
39:52Parliament calls them. "Hey you,
39:56Secretary of Defense, come here and
39:57explain to us what has happened in this
39:58matter." They call the Secretary of
40:01Defense, who is also a member of
40:03Parliament, and he must go there and
40:05give an account of what happened in a
40:07given situation. Well, and I also want
40:10to mention that cabinet decisions are
40:12made by consensus. The members, those
40:1520 most important ministers who make up
40:17the cabinet, meet at 10 Downing Street;
40:19they have breakfast there and discuss
40:21matters and can disagree in private.
40:25They can disagree as much as they want,
40:27say they don't agree with what is being
40:29debated there, but once a decision is
40:31adopted, it is adopted by consensus and
40:34everyone is jointly liable, with a sort
40:36of joint responsibility like that of
40:38corporate law; so they answer for that
40:40decision and therefore must assume it
40:43as their own and then, when facing the
40:45press, defend it even if they
40:47criticized it in private. And if they
40:50are not capable of maintaining that
40:51coherence and defending it in public,
40:53well, they have to resign from their
40:55post. This is one of the obligations
40:58that ministers have. Well, let me also
41:01mention a linguistic curiosity, since
41:03we translators like these things, that
41:06the British "minister" is not directly
41:08equivalent to the minister, at least in
41:11Spain and other countries I know,
41:13because in Spain and other countries
41:15ministers are those cabinet members,
41:17they are the head, only the head of the
41:20most important departments, and in
41:22Spain, there might be 20 or so, right?
41:25There are 104, right? They call many
41:28positions "minister" that we here would
41:30call director general, secretary of
41:31state, and other things like that. In
41:34other words, you also have to be
41:36careful about how to translate it in
41:38each case. Well, let's move on to the
41:42legislative power, the legislature. The
41:45legislative power is the main power in
41:47England today. Uh, there is a
41:49constitutional principle. The English
41:51do have a constitution, as I will
41:52explain some other day, because it
41:53would be too long to tell here. And one
41:56of the basic principles of the
41:58Constitution, along with "The Rule of
42:00Law," the rule of law, is "
42:02parliamentary sovereignty," that is,
42:04parliamentary sovereignty or "
42:05parliamentary supremacy," the supremacy
42:08of parliament. Nowadays, it is not an
42:11exaggeration to say that in the United
42:12Kingdom, Parliament is the main
42:14political institution, the primary one,
42:16and the one with the most power. It was
42:18also the first to break away from the
42:20Curia Regis, the House of Lords. It was
42:22one of the first institutions created,
42:24this parliament of notables, to debate
42:26matters of the kingdom, and little by
42:28little it has been acquiring more and
42:30more power. And also, based on the
42:32principle of parliamentary democracy,
42:34because England, uh, the United Kingdom
42:37is a parliamentary democracy, well, it
42:39makes sense that Parliament, which is
42:41an institution elected by the citizens,
42:43be the one with the most power, more
42:45than the queen, who was not elected by
42:47anyone, or the judges, who were not
42:48elected by anyone either, right? So,
42:51well, it is the institution that holds
42:53the most power, even much more power
42:55than in other countries in continental
42:57Europe, much more indeed. And
42:59Parliament is divided into two chambers
43:01; it is a bicameral institution. The
43:03whole thing is called Parliament, and
43:05Parliament has two chambers, The House
43:07of Commons and The House of Lords. The
43:10House of Commons is where the members
43:12of Parliament meet, who have been voted
43:15for, who have been elected by citizens
43:17in elections. There are, I think I
43:21remember, 650 members of Parliament,
43:22something like that, they don't all fit
43:24in there. In this photo you see here,
43:27the classic photo of the green seats,
43:29most are almost always empty, but when
43:31they all gather for the opening of
43:32Parliament, the closing, and so on,
43:34they don't fit. Many of them have to
43:36stand around because there are so many
43:38that they don't fit. And well, they are
43:40called members of Parliament or MPs.
43:42And historically, they were the
43:45commoners because they were not people
43:47who belonged to the high strata of
43:50society, they were not nobles, but
43:52rather common people, and they still
43:54maintain the name of the Commons.
43:57Nowadays they are not so common because
43:59they are quite, well, some of them are
44:01quite wealthy, but others are not. This
44:04is the lower house, what we also call
44:06the lower house, the House of Commons,
44:08and it is usually the one that has
44:10parliamentary initiative, legislative
44:11initiative, okay? It is where laws
44:15begin to be debated, and, well, where
44:17the bills that are presented begin to
44:20be processed, right? And the upper
44:24house, The House of Lords, is a
44:25revising chamber. Some call it "The
44:29Voice of Reason," in that poetic
44:30language that the English like so much,
44:32right? The Voice of Reason. The Upper
44:36House is a second chamber, a chamber of
44:38revision that, well, through a somewhat
44:40complex mechanism they have of first
44:41reading, second reading, and so on,
44:43revises the bills that are debated and
44:45approved in the Lower House of Commons
44:47and then sends them back with
44:48corrections and such. The interesting
44:52thing about the House of Lords is that
44:54it is made up of about 800 people, of
44:57which the majority, about 600, have not
44:59been elected by anyone. It is not a
45:01democratic chamber at all. Only 200 are
45:05elected and 600 are named or appointed.
45:15Well, there is a committee; this used
45:17to be done by the Queen’s appointment
45:18and so on, but for some years now there
45:20has been a committee that appoints the
45:22Lords to try to do it in a somewhat
45:24consistent way, right? And somewhat
45:26subject to certain rules. But it’s
45:29curious how, well, there are many Lords
45:32who have their position for life, the
45:34life peers, right? These life peers,
45:36the Lords who are called life peers,
45:38are Lords who hold the position for
45:40life until they die. There are others,
45:43about 90, who have a hereditary
45:44position, they are hereditary peers,
45:46who can pass it on when they die; their
45:48successors can continue to be Lords,
45:50they inherit the title and also the
45:51power to go to the House of Lords to
45:53debate there. And then there are also
45:5825 members of the Anglican Church in
45:59the House of Lords, bishops and
46:01archbishops of the Anglican Church,
46:02because the House of Lords was, well,
46:04the temporal and spiritual lords, they
46:06were the Lords Temporal and Lords
46:07Spiritual of the realm. So, they were
46:10the ones who met there. Today, there
46:12are still 25 members of the Anglican
46:14Church who have their seat in the House
46:16and go there, decide, and vote with
46:18everyone else. Male Lords are called
46:21Lords and women are called baronesses.
46:25This is a very traditional and very
46:27sexist chamber, but in recent years,
46:30thank God, it has fortunately been
46:32incorporating women as well, and they
46:34have the title of baroness, okay? One
46:37could talk for hours or days about the
46:39House of Lords. It’s a fascinating
46:41subject, but we are going to leave it
46:43here, okay? Because otherwise we won't
46:45see anything else. Well, I wanted to
46:46show you a photo of Westminster here.
46:49Surely many of you have been to the
46:50Parliament, the Parliament of
46:52Westminster. That is where the two
46:54chambers are, the House of Commons and
46:56the House of Lords. That’s where they
46:57meet. But the most interesting thing
47:01about this, well, is that if you know
47:03Westminster, in an area of 500 square
47:06meters, we have the Parliament, where
47:11the seat of the legislative power is.
47:13We have Downing Street, which is a
47:15little further here to the right,
47:17behind here. It’s a tiny street that
47:19is closed, right? You can’t pass,
47:21there is a fence and police officers
47:22are there, but it is a small street
47:24here between houses that is 300 meters
47:26away, Downing Street, where the seat of
47:27the executive power is. We have the
47:30Supreme Court in a square right in
47:31front of Parliament, now that it was
47:33established in 2009. This is a recent
47:35creation. The Supreme Court of the
47:37United Kingdom is also there in
47:38Westminster. And then, of course, we
47:41have the abbey, Westminster Abbey,
47:42which is the seat of the spiritual
47:44power of the Church of England, right?
47:46So, in that area, which was also where
47:48the Norman court settled when it
47:50arrived in England 900 years ago, in
47:53that same area and within those 500
47:55square meters, all the power of England
47:58, both temporal and spiritual, has
48:00resided for 900 years. And they say the
48:03English aren't attached to their
48:05traditions; well, they are people very
48:07attached to their traditions and they
48:09wear them as a badge of honor, and this
48:11is further proof of how their
48:12traditions remain in force, right? For
48:16900 years, the seat of political power
48:18in England has been in the same place.
48:22Well, there is the Victoria Tower, that
48:24big one over there, I'll just point it
48:26out to you. That one with the flag,
48:27that is the Victoria Tower. There is an
48:30archive of laws there, all the
48:32legislation, which I am going to show
48:35you. I think I have a photo here. Well,
48:39these are the archives located in the
48:41Victoria Tower of Parliament for the
48:44laws, the legislation of the last 400
48:46years that has been issued and passed,
48:48uh, not case law, we are talking about
48:51statute law now, okay? Laws issued by
48:55Parliament and by the kings and the
48:57crown, and they are preserved on those
49:00vellum scrolls made of lambskin,
49:02because according to them, it will be
49:04preserved much better and they want
49:07these laws to last for 1,000 years, and
49:09if they print them on paper, no one can
49:12guarantee that paper will last 1,000
49:14years. But vellum, the lambskin, will
49:18last 1,000 years, or at least it has
49:20been proven that it can. And therefore,
49:23they continue to print a copy on vellum
49:25of all new laws that are created. Each
49:28new law that emerges from Parliament is
49:30copied onto vellum. I suppose it is no
49:33longer a manual process, there won't be
49:35anyone writing, but rather some
49:36mechanical process that I don't know
49:37the details of. And one copy is kept in
49:40this archive. Ah, well, another one of
49:43the curiosities of the British system
49:46so you can see how attached they are to
49:48their traditions. They also have the
49:51laws in electronic format on their
49:52website, but a copy remains here for
49:54posterity because, hey, you never know
49:56what might happen. Right. And a note,
50:00one of those we linguists like, and I'm
50:02rambling a lot, forgive me, but I
50:04really like the topic, as you can see,
50:06and I'm rambling too much. So, excuse
50:09me, I will try to be more concise. A
50:13linguistic note: "legislature" is a
50:15false friend; we shouldn't translate it
50:18as "legislatura," but as "legislative
50:20power." Because "legislatura" in
50:23Spanish refers to the period that goes
50:26from when the government and parliament
50:29are active, from one election to the
50:31next, when parliament is formed, starts
50:34working, and until it dissolves just
50:36before the next election; that is a "
50:39legislatura." But don't translate "
50:42legislature" as "legislatura," because
50:43it's not the same. "Legislature" is the
50:46legislative power, it is one of the
50:48three branches of the State in charge
50:50of enacting laws. Yes? Come on, let's
50:53move on to The Judiciary, the judiciary
50:55, or the judicial power. This can
50:58indeed be called "judicatura," because
50:59we actually call it that too, or
51:01judicial power. Well, here you have the
51:03members of the Supreme Court, so
51:05elegant and handsome in front of the
51:06Supreme Court headquarters, which, by
51:12the way, can be visited on Thursdays,
51:13if I recall correctly, it is open to
51:14the public. If you go to Westminster
51:16one day and want to visit it, it's a
51:18very interesting visit. The Supreme
51:20Court also houses the seat of the Privy
51:22Council, which is fascinating, it's a
51:23matter, it's the Supreme Court of the
51:25Commonwealth, it's there, you can see
51:26it. I went there, took a picture, and
51:29it's super cool. Well, this is the
51:32Supreme Court, it is the head of the
51:35English judicial system, and the system
51:38is basically divided into two levels:
51:41the inferior courts and superior courts
51:44. The superior courts are the ones that
51:47create precedent. The decisions of the
51:49superior courts are what create
51:51precedent and therefore become case law
51:53, not those of the inferior courts.
51:55Agreed? Right. For a lot of years, the
52:02British judicial system—more or less
52:04about 600—was, as you can see here in
52:06these two points, the British judicial
52:08system was made up of the three
52:10Westminster courts: the Exchequer, the
52:12Court of Common Pleas, and the King's
52:14Bench. Uh, the itinerant judges at one
52:19point stopped working, as did the
52:21Equity Court. But in 1873 and also in
52:241875, there were two Judicature Acts
52:26that completely changed this system and
52:28reorganized it for the better. And this
52:32was—this is not the current system,
52:33but I want to show it to you for a
52:35moment because it's clearer than the
52:36current one, which is super convoluted.
52:41Well, from 1873 until the year 2005,
52:43this court system was in effect in
52:46England and Wales. These that you see
52:49down there in pink, I will explain them
52:50now to those of you on YouTube. These
52:53that you see at the bottom are the
52:55lower courts, which are made up of the
52:57Magistrates 'Court, the Crown Court,
53:00the County Courts, and the Tribunals.
53:03Those are the lower courts whose
53:04decisions do not create a precedent.
53:06The Magistrates' Courts are a type of
53:09criminal court for minor offenses—
53:11what we used to call "faltas" in Spain,
53:14which are now minor crimes—that try
53:16in the first instance drunk driving
53:18offenses, drug trafficking, uh, well,
53:21small vehicle theft, things of little
53:23importance, so to speak. The Crown
53:27Court is a criminal court of a higher
53:29rank, but still included within the
53:31lower courts. And the county courts are
53:35courts specialized in civil matters,
53:37okay? Also courts of first instance and
53:39belonging to the lower level. And then
53:42there are these "tribunals," which are,
53:45uh, administrative courts, so that...
53:47they don't even have a judge, it's a
53:50state official, it's a very strange
53:52thing; but they serve to decide issues
53:55of immigration, passports, well, labor
53:57issues too, some matters, a type of
53:59administrative court. And then we have
54:03the superior courts, which are formed
54:05by the High Court. The High Court is a
54:07single court that has several chambers
54:09or divisions, yes? The Queen's Bench
54:11Division, the Family Division, and the
54:14Chancery Division. That Chancery
54:16Division was the old Court of Chancery,
54:18excuse me, which in this English way of
54:20never making a clean sweep of
54:21everything, never abolishing something,
54:24but rather keeping the good and
54:25changing it, well, instead of getting
54:27rid of the Court of Chancery, even
54:29though it wasn't working well in its
54:31final years, they said: "Well, let's
54:33put it here as a division of the High
54:35Court and have it conform to the rules
54:37of the ordinary courts." Well, that
54:39chamber is what used to be the Court of
54:42Chancery, and they are rooms or
54:45divisions of a single court called the
54:47High Court of Justice, which is a court
54:50specialized in different subjects. Each
54:53room specializes in different matters,
54:55and then there is the Court of Appeal,
54:57which is an appellate court. Here, it's
54:59not about first instance, second
55:00instance, and so on. It doesn't work
55:02like that. In England, it's much more
55:03complicated, and sometimes there are up
55:05to four instances depending on the case
55:07. Sometimes there is only one. Ah,
55:09there are other procedures that go
55:11directly to the High Court with what is
55:13called the "leapfrog," uh, the leapfrog
55:15appeal. Well, this is very complicated.
55:17Here, we cannot speak of a first
55:19instance, a second, and then a Supreme
55:21Court as in the United States or in
55:23continental Europe. It is much more
55:25complicated. Even so, this map was
55:27actually a bit simpler, and I wanted to
55:29start here. And for many years, the
55:32House of Lords was also at the pinnacle
55:35of the Judiciary as a kind of Supreme
55:37Court, the final instance of judicial
55:39review, the House of Lords.
55:43Specifically, the House of Lords for
55:45many years, until 2005, had a group of
55:48lords who were called the Law Lords,
55:50the lords of the law, who were the ones
55:53specialized in resolving cases that
55:55reached the House of Lords, functioning
55:57as a Supreme Court. What was happening?
56:01What happened? Well, the fact that the
56:04House of Lords was at the same time a
56:06legislative body as the Upper House of
56:08the Legislature, a review chamber, and
56:11at the same time a judicial body as a
56:13Supreme Court, was a kind of mixing of
56:15powers, right? The judicial and the
56:19legislative, which didn't fit well with
56:20this idea of separation of powers,
56:22right? One of the basic principles of
56:24modern democracy is the separation of
56:26powers. Powers should be separated so
56:29there is no collusion and no excessive
56:31concentration of power in a single body
56:34. Of course, this wasn't very clear, so
56:37in 2005 it was decided to separate them
56:39. Well, they had always boasted by
56:41saying, "Well, yes, we have a
56:43separation of powers here," but they
56:45called it "soft separation of powers.""
56:48Well, we have our separation, but it's
56:49soft," and so on. and they joked about
56:52this until the joke just couldn't go on
56:54any longer, and so it was decided to
56:56create a Supreme Court, and the House
56:58of Lords today is no longer a Supreme
57:00Court; it is not the final court of
57:01judicial review, it is only dedicated
57:03to legislative functions. Well, this is
57:07the current scheme, which is much more
57:09complicated with a bunch of arrows, but
57:11, well, if you understood the other one
57:12a little, perhaps it will be easier.
57:16Here we have, at the bottom, the lower
57:18courts, eh, the courts whose decisions
57:21do not set a precedent. They don't
57:25create it, the Magistrate's Courts,
57:27although one must be careful with the
57:29translation of magistrate; the Crown
57:31Court is a criminal court of a slightly
57:33higher rank than the magistrates where
57:35they review decisions from the
57:37magistrates, the County Courts, and the
57:39Family Courts, some new courts created
57:42recently in 2014 for family issues, eh,
57:44which were previously specialized in
57:46family cases, eh, which the County
57:48Courts handled before. And then, well,
57:52following at the top is the High Court
57:54of Justice, The Court of Appeal, and
57:56The UK Supreme Court, the Supreme Court
57:58of the United Kingdom, which is the one
58:01that replaced the House of Lords
58:02starting in 2006 or 2005. And then
58:05these tribunals continue on the side.
58:07Okay? Well, and I have reached the end,
58:11since I have gone over the time more
58:13than I expected. I just want to tell
58:15you that, if you want, well, I will
58:17leave time for questions, of course,
58:19but if anyone wants to delve a little
58:20deeper into this, well, hey, I couldn't
58:22help but recommend our book that is
58:24there, from the Aranzadi publishing
58:26house, where you will find everything I
58:27have told you and much more. And what I
58:31will tell you next time about the
58:32United States, well, much more expanded
58:34, you have it there; if anyone wants to
58:36buy it, well, that's great. We don't
58:38sell it, the publisher sells it. We
58:40only wrote it, but it's sold by the
58:42publisher, which has the monopoly, but
58:43from that address you can access that,
58:45you can access the page where we will
58:47put you in contact with the publisher.
58:50And that's it, and I yield, I'm opening
58:52the floor for questions now because I
58:54suppose you'll want to go have dinner,
58:56but, well, I'm going to answer all the
58:58questions you want, okay? So we open
59:02the chat again and I will answer your
59:04questions while I have a little water.
59:07I hope this has been useful, I hope it
59:09has been enlightening and helpful, at
59:11least to provide a first introduction
59:13to Anglo-Saxon law. What is the common
59:15law and why is it so peculiar, and how
59:17is it reflected in England? Next time
59:23we will talk about the United States,
59:25don't worry. Ah, questions. Is there
59:29anyone who wants to ask something? If
59:30you want to, now is the time. Ah, right
59:34, the question comes up about how best
59:35to translate "magistrate." Well,
59:37magistrates are lay judges; they are
59:39volunteers. They are people like you or
59:43me who one day decide to serve the
59:45community and dedicate a couple of
59:47years of their lives, a few hours a
59:49week—it's not like they're stuck
59:51there all day—to serve in that court.
59:54It is a court for minor matters, and
59:56therefore, they are people who
59:58voluntarily serve the community by
59:59deciding the cases presented there.
1:00:01They have the help of a legal
1:00:02professional. They have a clerk there
1:00:04who is a lawyer and knows the law and
1:00:06guides them, but the one who decides is
1:00:08the magistrate. One of those English
1:00:10quirks, right? And translating it as "
1:00:13magistrado" is dangerous because in
1:00:15many countries, like Spain, a "
1:00:17magistrado" is a high-ranking judge, a
1:00:19judge who sits on a collegiate court, a
1:00:21provincial court, a high court of
1:00:22justice, or something similar.
1:00:24Therefore, our "magistrado" is not the
1:00:26English magistrate. So, it might be
1:00:29better to translate it as "lay judge"
1:00:31or "volunteer judge," and always leave
1:00:34it in English as "magistrate" in
1:00:36italics just in case. Okay. They are
1:00:41asking if the book is bilingual. No,
1:00:42the book is written in Spanish because
1:00:44we know how to translate from English
1:00:46to Spanish, but writing in English
1:00:48scares us a little. So it is entirely
1:00:51in Spanish. Well, wonderful. Let's see,
1:00:55anything else? Well, many people are
1:00:57thanking us, I appreciate it a lot. I'm
1:00:59glad it has helped. Let's see, Edwin
1:01:03asks, "Are magistrates judges of first
1:01:04instance with criminal jurisdiction who
1:01:06also have or had itinerant status?"
1:01:11Well, nowadays magistrates are
1:01:14volunteer judges, and career judges are
1:01:17called district judges or circuit
1:01:20judges, depending on the court they
1:01:23serve in England. Uh, well, ah,
1:01:32magistrates can be justices of the
1:01:34peace, yes. Ah, we have something
1:01:36similar called the "juez de paz." It
1:01:38exists in many countries. The thing is,
1:01:41I don't really like "justice of the
1:01:42peace" that much because it has very
1:01:44local connotations, whereas "lay judge"
1:01:46or "volunteer judge" is more neutral,
1:01:48you know? And it doesn't give you the
1:01:50impression that it's a Spanish judge.
1:01:51Ah, a Spanish justice of the peace.
1:01:54It’s a peculiar role, but I translate
1:01:56it as "volunteer judge" or "lay judge"
1:01:57and put "Magistrate" in parentheses
1:01:59just in case. I prefer it, but it works
1:02:02either way. Ah, Someone here mentions
1:02:08that when they visited Parliament, the
1:02:09House of Commons was almost full, but
1:02:11the House of Lords was pathetic; one
1:02:13person was speaking and four old folks
1:02:15were sleeping. Well, the subject of the
1:02:17House of Lords is quite curious. Yes, "
1:02:19The Voice of Reason" has to sleep
1:02:21sometime, and they are older people,
1:02:23but they take their work seriously when
1:02:26they do it. Eh, well, by nominal, what
1:02:29exactly are we referring to? The
1:02:32nominal power of the Queen. Ah, okay.
1:02:34It means it’s a formal power, eh, not
1:02:36a real one; the Queen doesn’t
1:02:37actually have the capacity to dissolve
1:02:39Parliament. She has to come to an
1:02:41agreement with the Prime Minister. The
1:02:43Queen signs peace treaties when there
1:02:45are any, or declarations of war, but
1:02:47always in coordination with The
1:02:49Executive. That’s what we mean by
1:02:52nominal power; today it is more formal,
1:02:55not real. Well, ah, Someone is asking
1:03:04if it would be possible to get the
1:03:05slide showing how the system is formed.
1:03:07Eh, okay? All the images, or almost all
1:03:10, I think all the ones I’ve shown you
1:03:12today are in the book, in our book. And
1:03:15also, if you buy the book, you get
1:03:17access to a webpage we’ve enabled
1:03:19where you can download the map. I know
1:03:22we've seen other maps, photos, eh,
1:03:24graphics, the Curia Regis graphic.
1:03:27There’s also a glossary at the end of
1:03:28the book. We’ve put all that on a
1:03:30website accessible via a link we
1:03:32provide in the book if you feel like it
1:03:35. We’ve included it as teaching
1:03:37resources also accessible for people
1:03:39who want or need to teach this to their
1:03:41students, so it’s in our book and can
1:03:43be downloaded from there. Ah, Someone
1:03:51mentions that it’s still a bit
1:03:53difficult to understand the system if
1:03:55you’re not inside it, but at least
1:03:57now they have a clearer picture. Yes,
1:03:59the English system is very difficult to
1:04:01understand. There is a reason apart
1:04:03from its peculiar origin that I have
1:04:05already explained to you. Aside from
1:04:08that origin, ah, there is another
1:04:10reason: in common law, because of this
1:04:12attachment to the cultural tradition
1:04:14that exists in England and Wales, they
1:04:16have never fully torn down things that
1:04:19emerged; they have always adapted them.
1:04:23So, Miguel Duro Moreno uses an analogy
1:04:25that I really like: that common law is
1:04:27like a house, like a mansion that is
1:04:291,000 years old and has never undergone
1:04:31a complete renovation. They have added
1:04:35rooms, closed off hallways, then built
1:04:37an extra floor, so it has been reformed
1:04:39and renewed using what was already
1:04:41there, never starting with a clean
1:04:43slate, as we often do in Europe. We
1:04:46tear everything down and build from
1:04:47scratch. They don't do that there. So
1:04:49they have kept what was useful and
1:04:51adapted and reformed it. That is why
1:04:53they have such a complex system and why
1:04:54it is so difficult to understand if you
1:04:56are not there. Of course. Oh my, I see
1:04:58there are many more questions than I
1:05:00thought. Forgive me, I wasn't using the
1:05:02scroll wheel here. Ah, let's see. Yes.
1:05:11Ah, well, there is still the debate
1:05:13here about how to translate "magistrate
1:05:15," a non-lawyer judge. No, I would
1:05:17simply translate it as a lay judge or
1:05:18volunteer judge. How many sessions does
1:05:21each of the, uh, sections have in each
1:05:23of the divisions of the High Court? No,
1:05:25I call section or, uh, division the
1:05:28same thing, because in Spain, for
1:05:30example, the Provincial Court is a
1:05:32single tribunal; that would be, uh, the
1:05:35entity, the judicial entity would be
1:05:37the Provincial Court, and then it has
1:05:40bodies which are, uh, chambers that can
1:05:42sometimes be called chambers, other
1:05:45times divisions, and others sections.
1:05:48So, for the "divisions," what they call
1:05:50"divisions," which there are three of
1:05:52—the High Court of Justice has three
1:05:54divisions—we can translate it as
1:05:55division, chamber, or section. Uh, no,
1:05:59it is not a tribunal; it is a body
1:06:03within the entity. Here is this
1:06:05theoretical division between a
1:06:07jurisdictional body and a
1:06:08jurisdictional entity. The entity would
1:06:10be everything in the High Court of
1:06:11Justice, like the Provincial Court here
1:06:13, and the body would be each of the
1:06:15divisions. And you can translate it as
1:06:17—since there are three—division,
1:06:18chamber, or section, however you like.
1:06:22And how to translate Curia Regis? It's
1:06:24the royal council, eh? It is, the Curia
1:06:26Regis is the royal council. A Spanish
1:06:30lawyer asks, can they practice their
1:06:32profession in England? Yes, provided
1:06:34you get qualified there. You have to go
1:06:36through a tough qualification process;
1:06:38you can't just arrive there and start
1:06:39practicing. There is the Law Society;
1:06:43if you want to practice as a solicitor,
1:06:45you have to be validated, take courses,
1:06:47pass exams, and if you want to be a
1:06:49barrister, I think it's tough—that
1:06:51would be practically impossible. Well,
1:06:56ah, then is the power they have there
1:06:58like the Queen's, I suppose, like the
1:07:00one Felipe VI has? Yes, it is a nominal
1:07:04power nowadays, very similar. Perhaps
1:07:07the Queen has a few more attributions
1:07:09than the Spanish monarchy, but, well,
1:07:11more or less along those lines. I'm
1:07:15also going to share the book's link in
1:07:18the chat because someone here is asking
1:07:20for it, in case anyone wants it. I'm
1:07:23going to copy the link and paste it
1:07:25into the chat for you. If I can find
1:07:28the chat now. Ah, yes, here. To
1:07:31everyone. Okay, there you have it. The
1:07:37book also has an electronic version.
1:07:39Yes, the book comes with a Thomson
1:07:41Reuters Aranzadi system called Proview,
1:07:43which also has an electronic version.
1:07:46So, you can access the book's digital
1:07:48version, and you can also perform
1:07:50searches. It's quite good when you buy
1:07:52the paper edition. If you only want to
1:07:55buy the digital edition, it's cheaper,
1:07:56it costs half or less, and you only buy
1:07:58the digital edition, then they give you
1:08:00a key, you download it, and that's it.
1:08:02It's not PDF, eh, it's not Kindle, it's
1:08:04a proprietary system from Thomson
1:08:06Reuters called Proview, but well, it
1:08:08works quite well. Ah, and they ask here
1:08:12about Queen's Counsel, the QCs or "
1:08:15Silks"—are they judges? Ah, no, they
1:08:18aren't lower rank; they are lawyers of
1:08:20a higher rank. The Queen's Counsel, the
1:08:24QC, is a judge—sorry, he is a lawyer,
1:08:27he is a barrister. Eh, another day we
1:08:30will talk about the legal professions
1:08:32because today I didn't have time to
1:08:34cover this aspect, but it's also very
1:08:36interesting. Queen's Counsel are senior
1:08:38barristers, let's say, who have great
1:08:40experience and great prestige within
1:08:43the profession. These are the
1:08:45barristers who go to trial to represent
1:08:48their clients before the courts and who
1:08:50have also been appointed by the Queen
1:08:52as Queen's Counsel for their merits
1:08:54over a few long years of practice,
1:08:55right? And they're called Silk because
1:08:59they get a special silk robe that's
1:09:01prettier, more expensive, better
1:09:02quality, right? More of these English
1:09:05traditions again. Anyway, forgive me, I
1:09:10don't know if I missed any other
1:09:12questions here because I scrolled down
1:09:13quickly. If you want to ask me any more
1:09:21questions, the webinar will be
1:09:22available to watch later. The webinar
1:09:24will be available to watch later for
1:09:26members of the great translators 'club.
1:09:29Forgive us, but this is one of the
1:09:31privileges our alumni club must have.
1:09:33So, everyone who has taken our courses
1:09:35will have the recording in the club to
1:09:37watch whenever they like. And if you
1:09:39take any of our courses at some point,
1:09:40you'll have access to the club and be
1:09:42able to watch the recording of this
1:09:43webinar and a ton more that we've done
1:09:45over a long time. Now, only live. We
1:09:48might make some clips of this and post
1:09:49them on YouTube later, but definitely
1:09:51not the whole thing, no. And I don't
1:09:56know what else. Eh, for my part, I
1:09:58think we'll leave it here because I'm
1:10:00looking forward to having dinner, since
1:10:01it's already 9:20 in Spain. I hope you
1:10:04enjoyed it. Eh, I thank you very much
1:10:07for being here; there have been almost
1:10:0980 people here the whole time and a
1:10:10bunch more on Facebook and YouTube too.
1:10:13I thank you very much for your presence
1:10:14. I hope it helped you understand the
1:10:17Anglo-Saxon legal tradition a little
1:10:19better and also learn something more
1:10:21about the political and legal
1:10:23circumstances of the United Kingdom.
1:10:27That's all, see you next week, Thursday
1:10:28the 16th, at the same time. We'll be
1:10:31right here at home, we aren't going
1:10:33anywhere, and we'll be here to talk
1:10:35about the legal and political system of
1:10:38the United States—very interesting
1:10:40and exciting—about federal courts,
1:10:42state courts, we'll talk about the U.S.
1:10:45Constitution and things like that,
1:10:47which I hope you'll enjoy and also
1:10:49serve to spark debate. Thank you very
1:10:52much for being here, I appreciate it,
1:10:53everyone, and we'll see you, okay? Bye.

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