21 - Common Law Flashcards
General…
William the Conqueror travelled the country ruling on his subjects grievances.
Role gradually delegated to Justices who held ‘Assizes’ (sittings) of the royal courts.
No Unified or national set of laws.
System formalised under Henry II who divided country into ‘circuits’ for judges to visit regularly.
Judges as a group began to adopt the best of the local customs and eventually a ‘common’ law emerged.
There are rules of behaviour which develop in a community without being deliberately invented. There are two main types of custom what are they?
General Customs
Local Customs
General Customs…
Historically, these are believed to have been very important in that they were, effectively, the basis of our Common law.
It is thought that following the Norman conquest (as the country was gradually brought under centralised government) the judges appointed by the kings to travel around the land making decisions in the King’s name based at least some of their decisions on the common customs.
Today, Michael Zander writes that probably a high proportion of the so-called customs were almost certainly invented by the judges.
In any event, it is accepted that general customs have long since been absorbed into legislation or case law and are no longer a creative source of law.
Local Customs…
This is a term used where a person claims that he is entitled to some local right, such as a right of way or a right to use land in a particular way, because this is what has always happened locally.
Such customs are an exception to the general law of the land, and will only operate in that particular area.
Decisions were made by following:
General Customs - common customs of the land
Local Customs - where a person claims that he is entitled to some local right, (e.g. a right of way or a right to use land in a particular way) because this is what has always happened locally.
What is Common Law and where does it originate?
The common law is a judge-made system of law because it was the judges who over many centuries were responsible for merging and developing the original laws and legal customs into this single system of law.
The common law originates from the original laws and legal customs of England that existed prior to the Norman conquest of England in 1066.
After 1066 these original laws slowly merged and developed into a single system of law referred to as ‘the common law’.
Today the term common law is regarded as including all case law.
Drawbacks of the common law…
Common law courts perceived to be slow, highly technical and very expensive
Could only litigate if a ‘writ’ was available covering the facts of the case and these were limited by 13th Century
Writs were formulaic and inflexible sometimes resulting in injustice
Only one remedy available - damages.
