english common law Flashcards
first written english legal document
During the rule of Aethelbert in the 7th century, which is written in the Old English language, contains legal provisions about compensation and punishment for personal injury and aimed at reducing blood feuds.
english law in the early middle ages
In the 9th century, legal provisions in Old English increase. The Christian influence is significant with references to ecclesiastical law and the Bible, and there is a use of Roman terminology and formulas.
norman invasion
William the Conqueror in 1066: he established a new kingdom with centralised government and most positions held by Normans. But there was a continuity of pre-existing law and compilation of customs to ensure stability.
roman law in england
The Roman Law reception starts with Vacarius, who had studied in Bologna and taught in Oxford in the 12th century. Canon law was practised in the ecclesiastical courts established by the Normans.
However, from the 14th century on, judges were selected from the advocate working at royal courts with a good knowledge of the writ system rather than an university education.
establishment of royal courts
Royal courts were established in line with the idea of the centralised government of the crown and their web grew exponentially between 11th and 13th century. The aim was the limitation of the power of the lords and direct access to their vassals. First, royal justice only applied to litigant physically in front of the king, later temporally on holidays such as Pentecost or Christmas, later on to whole geographical areas.
Any free men could bring a case before the royal justice. These were courts of subsidiary importance: there was no hierarchy established, it was not above feudal or canon courts.
evolution of writs
They were first only orders on how to remedy a situation, issued by the royal justice with any specific procedure, and supplied fast solutions but were easily abused.
In the 12th century, it gave the option for the wrong-doer to comply or defend themselves before the royal court, and thus the procedure of pleading arises.
In the 13th century, pleading is already a highly formalised procedure before the court.
characteristics of writs
Writs were the formal instrument to open a litigation, which it depended on the king’s willingness to intervene.
In the standardisation process a list of fixed formulas were published and royal courts became more popular as they were seen more equitable and effective.
Each time they issued a writ, they recognised the existence of a right, and conversely, no writ meant no way to enforce that right and thus no existence of it.
They were extremely attentive to procedural rules, as this kept the prestige of royal justice safe: everyone had to go through the same process.
legal professionals in england
procurators: standing in for an absent party
barristers: specialised in pleading
attorneys: counselled clients.
education of legal professionals in england
The barristers organised themselves into guilds, which lead to the emergence of Inns, where socialisation and specialised training happened. There were four ‘Inns of Court’. They had lessons in argumentation (moots) and mock trails focusing on procedures and obtaining evidence.
multinormativity
Multinormativity means the overlap of different normativities relating to one issue.
legal pluralism
Legal pluralism means the overlapping norms in a given territory are equally perceived as binding.
evolution of equity courts
The king still needed a system to address special circumstances to which they created an extraordinary remedy system.
The litigants could address the Chancellery directly, which gave the chancellor great discretionary power.
It was a flexible and fluid system, in the beginning influenced by Roman and canon law, later common law.
From the 15th century it took on a static character and institutionalisation through repetition, creation of patterns and list of remedies. The subjective royal sense of justice was no longer applied, instead principle of objective fairness.
legislation in england in the Middle Ages
Legislation was first issued by the kings, such as the Assize of Clarendon (1166) by Henry II, which modified criminal procedural law.
From the 13-14th century on, the Parliament proposes responses to petitions, but all power still rested in king’s hand.
Legislation was of minor importance: it often repeated existing norms, and number of statues were relatively small compared to other sources of law.
claims for the detachment of common law from the crown
- common law was not created by royal intervention but it was grounded in customs
- it is the superior legal system ever existed in England
- it is not the justice of the king but rather binding on the monarch as well and limiting his power
- it is completely free of canon and Roman law influence
stare decisis
= the legal principle that courts should follow precedents set by previous decisions to ensure consistency and stability in the law.
characteristics of the common law system
- importance of precedent and case law character
- adversarial mode of litigation
- juries in both criminal and civil cases
- judge-made law
- analogical thinking
- distinguishing between law and equity
english civil war (1642–1651)
A conflict between King Charles I and Parliament over issues of governance, power, and religion. It led to the execution of Charles I in 1649 and the establishment of the Commonwealth under Oliver Cromwell.
After Cromwell’s death, the monarchy was restored in 1660 with Charles II. However, tensions over royal authority and religion persisted.
The Glorious Revolution of 1688 deposed James II and brought William III and Mary II to the throne. This led to the 1689 Bill of Rights.
bill of rights (1689)
— King may not suspend or dispense laws or their execution without Parliament
— King may not levy taxes without Parliament
— King may not keep an army in times of peace without Parliament
— Free election of the members of the Parliament
— Freedom of speech and debates in Parliament
— Right to petition without being persecuted
english constitutional law
- No written constitution
- Sources of constitutional law are Acts of Parliament, case law and conventions on how the constitutional bodies conduct
- Constitutional principles developed over centuries:
— Constitutional monarchy
— Parliamentary sovereignty
— Rule of law
changes in english legal education in the 19th century
1849/50: The Universities of Cambridge and Oxford introduce a Bachelor in law
1852: Foundation of the Council of Legal Education: Harmonisation and standardisation of the legal education of the Inns of court
1872: Introduction of a bar exam
→ Standardization of legal education in the 19th century, however, studying law at a university remained non-obligatory for future lawyers
voices against codification in england
- Common law as superior to codifications
- Common law as the customary law shaped over centuries by the courts
- Concrete and flexible
- Ensuring tailored decisions and by this freedom
- Granted by judges who were seen as the best legal experts
- Accompanied by distrust in the Parliament
codifications attempts in england
- Codification attempts
- Attempt for criminal law fails in 1833 and in 1878-1880
- Attempt to compile and revise English statute law and create a digest of case law fails in 1866-1880
- Consolidation Acts in the 19th century are enacted instead of constitutions
- Reproduces the statutory norms and the case law of a certain legal field, approved by the Parliament
- Goes often along with changing of the law through selection and re-interpretation
- Codifications for the colonies, starting with India in 1860
Jeremy Bentham (1748–1832)
= a major advocate for legal codification, Bentham argued that English common law was chaotic and should be replaced with a systematic legal code. He proposed detailed legislative drafts and influenced later legal reformers.
Sir William Blackstone (1723–1780)
= a key figure in English legal history, best known for his Commentaries on the Laws of England, which systematically organised and explained English common law.
development of english case law system
- Common law as a case law developed by the courts from the 11th century on
- Publication of court decisions in Year Books starts in the 14th century
- Stare decisis of former cases have binding power
- Application via distinguishing and analogy to new cases as a mode of norm production
Change in 19th century:
→ Binding power of stare decisis even if it is only stated in one judgment based on the ratio decidendi (= legal rules on which the court builds the decision)
→ Not only vertical but also horizontal binding of the courts for appellate courts: Courts are bound to their own previous judgments
→ Tight requirements for overruling
ratio decidendi
= the legal, moral, political and social principles used by a court to compose the rationale of a particular judgment.
Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis.
