M3 T1 The historical evolution of Common law

Question 1

Where did common law arise?

Answer 1

Courts of Middle Age England

Question 2

How did Common law evolve in relation to Roman law?

Answer 2

The common law developed separately from Roman Law as when the corpus was discovered in the 11th century, the British had already started developing their own legal system.

There is a scarce influence of Roman law as the Romans conquered large parts of Britain and there was a certain degree of reception of Roman institutions.

Question 3

What are the differences, or similarities in the origin of the two major legal systems?

Answer 3

Law in both systems arose as a restriction on power.

In the continental law, it arose from the ideological foundation of the French Revolution, to end an ancient regime of monarchs and limit power through law.

In England, law arose as a restriction on royal power.

Question 4

What is the Magna Carta?

Answer 4

from 1215, and is the oldest English constitutional text. It consists of the number of limitations imposed by the nobles on the king.

Question 5

Continental or common law?

Deductive method and abstraction

Answer 5

Continental

Question 6

Continental or common law?

Inductive logic and empiricism

Answer 6

Common

Question 7

What is the idea behind the legal method of the common law?

Answer 7

There is no tendency for universal abstract principles. English jurists want to find solutions to particular cases. There is no intention to use an individual problem solution in other cases.

Question 8

Two differences between Continental law and Common law.

Answer 8

1. Lack of codification in the common law legal system.

2. In terms of legal training, common law jurists receive practical training and face real cases from the start

Question 9

In which context did the common law originate?

Answer 9

Feudal and consuetudinary

Question 10

Under which monarch were the foundations for the development of the common law laid?

Answer 10

Norman monarch William I, who came to power after the Normans defeated the Anglo-Saxons at the battle of Hastings in 1066

Question 11

Did the Norman monarch make many changes in the existing English laws when he took the throne?

Answer 11

No. He allowed for pre-existing customs to survive and let the administration of justice remain in the hands of nobles, compartmentalized on a feudal basis.

Question 12

Which modifications did the Norman monarch introduce to the political realm?

Answer 12

He introduces the pyramidal feudal system with the king at the apex as the unchallengeable central authority

Question 13

How did the royal justice come to be under the Norman Monarch?

Answer 13

the Royal administration intervened in legislation and litigation between barons if it affected the Crown’s interest. The royal justice was therefore created primarily for fiscal matters but turned into jurisdiction with a broader reach.

Question 14

What was the Curia Regis under the Norman monarch?

Answer 14

“Royal Council” or “KIng’s court” was a council created by the crown that was awarded exclusive jurisdiction over all state affairs.

Question 15

To what do we refer to when we say Common law in the sense of it as a historical source?

Answer 15

The law developed by judges in the Curia Regis. It was applicable to all inhabitants and lands of England.

Question 16

What happened in 1300?

Answer 16

Centralization of the Royal justice with a seat established in Westminister that was not altered until the 19th century.

Question 17

Who was Renulf de Glanville?

Answer 17

Chief Justiciar of the kingdom under Henry II

Question 18

What was the Tractatus de legibus et consuetudinibus regni Angliae?

Answer 18

Treaties that laid the basis of the English legal system

Question 19

What happened between the XXI and teh XIV centuries?

Answer 19

England experienced a unification of its laws. Happened before countries of the continental legal tradition.

France:16th century
Germany and Italy: 19th Century

Question 20

What are two characteristics of the Royal justice that were determinant in the evolution of English law?

Answer 20

1. Exceptionality
   The Common law courts arose to deal with cases of an exceptional nature as it only had legislation over affairs of the state where the Crown had some interest. The Feudal justice of the nobles dealt with general matters.
2. Formalism
   Did not arise as substantive law, but subjective rights arose as a consequence of procedural rights. Law of a procedural and formalist nature.

Question 21

What is the juridical institution; Writs?

Answer 21

Royal justice could only be sought by the way of writs or form of action.

Described injurious behavior or procedural steps to be taken to make a claim before the courts.

An act causing harm without a corresponding writ could not be taken to court.

Important to choose the right type of writ.

Eventually, terms of writs were standardised and collected in registers.

Question 22

What is a difference between the development of the Continental law and the common law?

Answer 22

Common law did not develop through the creation of new laws but by the accumulation of judicial decisions and precedents issued by generations of judges.

Question 23

what was an extraordinary development of Common law?

Answer 23

The growth of writs between the 12th and the 14th century

Question 24

What gave rise to the other great historical source of English Law, equity, in the 14th century?

Answer 24

Parties felt that the formalism of the Royal justice produced injustice. They therefore sought protection directly from the monarch in accordance with “morality and good conscience.”

The Monarch answered through the Lord Chancellor that judges based on equity and justice, not rules laid down by judges.

Question 25

What was established when the petitions to the monarch through the Lord chancellor grew?

Answer 25

The Court of Chancery.

Question 26

Who was Sir Thomas More and which important doctrines and concepts were developed under him?

Answer 26

First non-church chancellor in the 16th century.

Precepts and doctrines of equity were developed.

The concept of binding precedent arose as in Common law courts

Question 27

What did the Royal courts deal with, and what was a possible solution to issues?

Answer 27

Disputes over breach of contract between parties or extra-contractual wrongs.

One solution: payment of compensation for loss and prejudice.

Question 28

When did formalism of Common law produce injustice?

Answer 28

When a wrongful act was not described in a writ or when a plaintiff preferred the contract to be performed instead of receiving compensation.

Question 29

Which nature of the legal system in England created conflict?

Answer 29

Two bodies of parallel systems existed

1. Common law: imparted by Royal Judges
2. Equity: imparted by the court of Chancery

Question 30

What was an important outcome of the 17th-century case of the Earl of Oxford?

Answer 30

King James ruled in favor of his chancellor; equity would prevail in a conflict between the two systems.

Question 31

What was the 18th century Court of Chancery like?

Answer 31

Corpus of doctrine and case law.

Technical legal precepts

Analogous to principles of common law.

Question 32

On which principles are equity founded?

Answer 32

Morality and good conscience

Question 33

4 rules of Equity in the practice of law

Answer 33

1. Those who seek equity must come with clean hands
2. Equity has more consideration for intention than form
3. Equity aids the vigilant, not those who slumber on their rights.
4. Delay annuls equity

Question 34

What are the two historical sources of English law?

Answer 34

Common law and Equity

Question 35

3 aspects to the relationship between common law and equity

Answer 35

1. In a conflict, equity prevail
2. Equity does not contradict or replace common law, but rather qualifies and enriches it.
3. Common law is complete and self-sufficient. Equity is not as it is a body of law composed of supplementary rules

Courts use both.

Question 36

What was the Judicature Act of 1873-1875. Which 4 things happened.

Answer 36

It reorganized the structure of the courts and redefined procedural rules

1. System of writs and forms of action disappeared
2. Court of Chancery was abolished
3. Courts of Common law and equity were combined
4. More recourse had to legislation to provide greater juridical security and access to law for the whole population.

Question 37

Why was justice in a state of confusion in 19th century England?

Answer 37

There were many courts with overlapping jurisdictions. There were different legal procedures and norms with diverse origins.

Question 38

What is the role of legislation in the English system?

Answer 38

it has not played the same role as in the continental legal system. It is hierarchically superior to case law but is not the norm.

Laws passed by the English parliament are consolidations of norms already established in the common law

Question 39

In the 19th century, of which nature was most of the new laws?

Answer 39

Commercial

Question 40

In the event of doubt as to interpretation or application of law:

Answer 40

Precedent will always prevail over the law in issue.