The Legal Systems in Scotland, Australia and the United States - Term Paper Example

Legal Systems Introduction: The Legal Systems in Scotland, Australia and the United s: Scotland maintains its own separate court system, but still functions along the lines of a unified legal system within the U.K, where the legal advocacy system was first split into Solicitors and Barristers in the nineteenth century, when the Bar agreed to concede the administrative aspects of the profession as embodied in conveyancing and direct client access to the solicitors1. In return they sought sole rights of audience in the higher courts including the privilege of becoming the judges in those Courts . Barristers wore white wigs and long robes and since the 19th century, their realm of operation was confined to the courts, working as sole practitioners who were instructed by solicitors2. Although Scotland has its own courts and legal system, nevertheless it is based upon the same principles as the English legal system and has an advocacy system that is split into two, so that expert services are available to litigants for different areas of law. Most countries do not have a dual advocacy system. The United States is unlike other Commonwealth states in that it draws no distinction between barrister and solicitors, and every lawyer who passes the bar exam is eligible to argue in the courts of the State where he/she is admitted to bar. While a certificate may be required to argue in some appellate courts, this is generally accomplished through the payment of a small fee. However, as O’Brien3 points out, this does not necessarily mean that expert services are compromised since there are expert services provided by some lawyers to specialize just for this purpose. Australia appears to represent a combination of the two systems. There are solicitors and barristers however the legal advocacy system is fused, but there is an independent bar that regulates their conduct. But in the most densely populated states of Australia for example, there is a “divided legal profession, although in practice firm specialisations operate in the other states.”4 The Scottish legal system, being a part of the UK, Parliament is sovereign, as articulated by Oxford Professor A.V. Dicey who stated that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.5 However, the Australian Commonwealth and the United States are a federation of states, wherein Federal laws regulate certain areas such as defense, and provides an overall legal framework ,while the states formulate their own modifications of the laws as relevant to their particular area. Therefore, the Scottish system is different from the other two countries in this aspect. However one extremely important difference between American and Scottish/Australian systems lies in the independent judiciary in the United States. In the UK, since Parliament is the ultimate source of power, this also includes the judicial function which is limited by Parliament. In the United States however, there is a complete separation of powers and the judiciary is independent, thereby predisposing the legal system to place the individual above political processes and goals. Law of property: In the UK, prior to the Land registration Act of 20026, the Limitation Act of 19807 specified a limitation period of twelve years after which those in adverse possession could apply for the title to the land8. The limitation therefore subordinated the rights of the paper owner to recover the land, so that the squatter’s possession becomes impregnable, “giving him a title superior to all others”.9 The Act also addresses the rights of those who have registered their property before the implementation of the Act – they will not be affected in their ownership of the land, therefore a squatter will be required to show that for the ten year period, he reasonably believed that he owned the land,10 therefore in the case of Pye v Graham11 the Grahams would not have won the case under the new law. However, by allowing the squatter the right to apply for ownership to the land, the Land registration Act has shifted the issue of possession of land from that of purely physical possession to the necessity to demonstrate actual ownership of title. After three years, squatters will have the option to apply for ownership only if they continue to remain in physical possession of the land for at least two more years over and above the ten year period specified in the Act. The law of ownership and adverse possession in the United States is also derived from English common law and Barnet has provided a comprehensive analysis of the historical origins of the law of possession within the United States.12 He points out how it is easier for squatters to acquire possession of wild or undeveloped lands through the mode of adverse possession and the dangers that this poses to the environment through irresponsible use of the land thus acquired. He also examines the land title system, which is two fold in the UK but assumes a multiplicity of forms within the fifty states of the United States, both for title recordation in effect in all states and title registration which is in practice in fifty states. On this basis, he also assesses the relevance of the land registration Act of 2002 in the context of the United States, but proposes that if it is to be successfully implemented, then certain modifications must be made. Since the rule of situs governs property law in the United States, a uniform land registration act must be derived which will be uniform over all the fifty states and avoid much of the confusion and conflict in land and property laws. The Australian Constitution is based upon common law principles. Section 51 of the Constitution provides legislative power for the Commonwealth on the acquisition of property13 and to ensure and guarantee just terms14 to provide constitutional protection for the right to hold private property.15 Section 51 of the Australian Constitution is the basis whereby Courts determine “unjust enrichment” - defined by the Birkisian theory as the accruing of benefit to a defendant through unjust circumstances at the expense of the Plaintiff.16 The word “property” has been given the widest possible meaning under Section 51 (31) and the phrase “acquisition of property” is not to be limited by traditional modes of conveyance of property, thereby clearly defining the intent to make unjust enrichment based upon the assessed value of property as the defining clause of this Section.17 On this basis therefore, it may be noted that the question of adverse possession is one that is more prominent in the United States, while in the UK the registration act has attempted to bring some uniformity and legality into land ownership. However in Australia, the rules for unfair acquisition of property has been strictly limited through provisions in the law. Contract law: As far as contract law in Australia is concerned, Section 7 of the sale of Goods Act (1923) of New South Wales specifies the mental capacity of a person to enter into a sale is vital18. The proper price19 must be “reasonable” and must be ascertained through mutual agreement between the parties. Moreover there are also provisions under Section 51(31) of the Constitution to protect individuals against unjust enrichment. The restitution in this case may be made only by implementing “just terms” which has been described as that which is “fair in the circumstances.”20 The Fair Trading Act (1987) (NSW) and the Contracts review Act (1980) (NSW) assess and redress power imbalances in contractual relationships to ensure that consumer rights are protected. The Trade Practices Act (1974) of the Commonwealth under Section 51 AC and Section 12CC of the ASIC Act have included unconscionability regulations that require commercial parties to take note of the interests of others, making it easier to over turn or rewrite contracts21. The Sections of the Act now include provisions for the potential use of unconscionability - where a stronger party exploits a weaker party due to the combination of circumstances in which they find themselves22 - and undue influence through unfair treatment to a third party.23 The United States has a strong consumer market and Bebchek et al have highlighted the position of strength sellers are in sometimes, which results in the creation of one sided contracts.24 The notable developments that have taken place in the United States in the area of contract are in limiting the circumstances that could be considered unconscionable. According to Marrow, through restricting the scope of enquiry on unconscionability in contract, the possibility of subjectivity included within the sphere of the law and in decision making by Courts is avoided and family law has been modernized with such reduction in subjectivity25. Similarly, Barnhizer also points out the impact of the emerging cyber age upon the development of bargaining power in contract, thereby posing the question of validity and applicability of traditional contract law in a cyber economy.26 Within the UK, contract law is primarily derived from the precedents that have been laid out in case law. Contract law is governed by the Statute of Frauds and the Law of Obligations. A contract for sale of goods is regulated by the Sale of Goods 1979. Rights of third parties are covered under the Contracts (Rights of third parties) 1999 and unfairness in contracts is actionable under the Unfair Contract terms Act 1977, which is geared towards protecting the interests of consumers. However, it may be noted that in general, the three different legal systems offer more or less the same systems as far as contract law is concerned, and there has been a growing trend in all systems to introduce measures that will introduce greater protection for the consumers, since contract law may be classed as private law, wherein the Crown is conceived of as a juristic person.27 But with the trend towards the evolution of the cyber age, consumer bargaining power is growing, therefore established equilibria in contract law may be subject to change. Tort law: Nils Jansen28 has undertaken a comprehensive comparison of tortuous liabilities arising out of negligence and points out that here are different levels of relief that are granted for different categories of losses and restriction on liability is based upon the outcome related model of liability for a negligent act. France is the only European country that differs in that it has set out a uniform level of relief rather than relief on a differentiated scale. Moreover, he has pointed out how the English system has been changing to accommodate the demands of the European Convention of Human Rights, such that the protection of the individual mandated in EC law, has resulted in an expansion of the liabilities arising from tort, creating an extracontractual liability towards the individual if a contract is breached and harm or wrong is done to the individual as a result of that breach. There is one notable aspect in which Scotland as a part of the UK differs from the United States in tort law. Since the source of UK law is the Parliament, there are often caps placed on recoveries that are allowed under tort. This may occur as a result of political considerations and the all pervasive power of Parliament. This has also been the position in Australia where unlimited tortious remedies have generally not been allowed because, as stated by Justice Kirby: “…..judges have no authority to adopt arbitrary departures from basic doctrine.”29 Therefore, the development of tort law is politically motivated to some extent, although the introduction of EC law has resulted in a greater focus on the individual. However, there is no such restriction or cap placed on recoveries for violations under tort. The legal system allows and accommodates very large settlements for negligence and related claims, if proved and therefore there is also a greater number of these suits. Thompson points out how securities fraud cases have to be brought under the purview of deceit under tort, in order to ensure that individuals who are subjected to the damaging effects of negligence and fraud are compensated adequately for their losses. Therefore this cap on recoveries is a very important aspect of the US and UK-Australian legal systems, and reflects political interference in the judicial system30, while the independent judiciary in the United States does not need to accommodate political goals and can focus upon recoveries to individuals. References: * Adverse Possession: Land Registry Act of 2002.” [Online] Available at: http://www.landregistry.gov.uk/assets/library/documents/fact_sheet002.pdf. * Barnhizer, Daniel D, 2006. “Cyberpersons, propertization and contract in the information culture: propertization metaphors for bargaining power and control of the self in the information age.” 54, Cleveland State Law Review, 69. * Bebchuk, Lucian A, and Posner, Richard A, 2006. “One sided contracts in competitive consumer markets.” Michigan Law review, 104(5): 827-836 * Cane, Peter, 2005. “Taking disagreement seriously: Courts, legislatures and the reform of tort law.” Oxford Journal of Legal Studies, 25(3): 393-417 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471 * Jansen, Nils, 2004. “Duties and Rights in Negligence: A comparative and historical perspective on the European law of contractual liability.” Oxford Journal of Legal Studies, 24(3): 443-469. * Limitation Act of 1980” [Online] Available at: http://www.swarb.co.uk/acts/1980LimitationAct.shtml; * Marrow, Paul Bennett, 2005. “Squeezing subjectivity from the doctrine of unconscionability.” 53, Cleveland State Law review, 187. * McLean, Janet, 2004. “The Crown in Contract and administrative law.” Oxford Journal of Legal Studies, 24(1): 129 * O’Brien, Diedre, 1998. “Bar Wars” Law Society Gazette, 92(2), pp 12-15 * Zander, Michael, 2004. “Cases and materials on the English legal System”, 9th edn, Cambridge University Press * Zweigert & Kotz, 1998. “Introduction to Comparative Law” Clarendon Press Cases: * ACCC v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491 * ACCC v Samton Holdings Pty Ltd [2002] FCA 62. * Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37 * Cattanach v Melchior (2003) HCA 38 * CG Berbatis Holdings Pty Ltd v ACCC [2001] FCA 757 * HECEC Australia Pty Ltd v Hydro-Electric Corp (1999) ATPR 46-196 * Murphy v Overton Investments Pty Ltd [2001] FCA 500 End notes: Section 51 (31) of the Constitution of the Commonwealth, attributes power to the Common wealth to legislate in respect of “(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. According to the formula set out by Birks’ theory, a Plaintiff may sue on the grounds of unjust enrichment where there has been (a) an enrichment (b) the enrichment accrues to the Defendant (c) the enrichment occurs at the expense of the plaintiff and (d) the enrichment occurs in unjust circumstances. Section 15(1) of the Limitation Act of 1980 states: No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. At page 184-185 of the case of Mutual Pools and Staff Pty Ltd v FCT (1992) 173 CLR 450, Deanne and Gaudron JJ stated as follows: “….the word "acquisition" is not to be taken to be pedantically or legalistically restricted to a physical taking of title or possession. Once it is appreciated that "property" in s 51 (31) extends to all types of "innominate and anomalous interests" it is apparent that the meaning of the phrase "acquisition of property" is not to be confined by reference to traditional conveyancing principles and procedures.” * Section 7 of the Sale of Goods Act (1923) of New South Wales states as follows: “Capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property: Provided that where necessaries are sold and delivered to a person who, by reason of mental incapacity or drunkenness, is incompetent to contract, the person must pay a reasonable price therefor.” * Section 13 of the Sale of Goods Act (1923) of NSW states as follows: “The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions, the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. “ Read More