Sources of Law Flashcards
Define Law.
The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties.
What are the functions of law?
- maintains peace and safety in society
- regulates the relationships between persons and/or entities
- it protects human rights and liberties
- it ensures the smooth running of economic and political activities
What are the stages of legal development?
○ PRE-1066 (Norman conquest) - the locally-based systems and customs of the Anglo- Saxon society.
○ 1066-1485 (Tudor accession) - the formation of common law and its imposition over and above local systems and customs
○ 1485-1832 - the development of equity
○ 1832 to the present day - modern period:
> The fusion of common law and equity
> Massive development in statute law
> Growth of governmental and administrative bodies
>The influence of the European union
What is equity?
a branch of law that developed alongside common law and is concerned with fairness and justice
Describe the monarch as the source of justice.
- today’s legal system has its origins in the King’s (and Queen’s) Courts
- following the Norman Conquest and the imposition of the new feudal system, it became possible to dispense centralised justice, with the King as the central body.
- Initially, the King exercised only ‘High Justice’, that is, his personal power, in a very limited number of disputes. Generally, this was in cases where the monarch was personally affected, and where the usual localised form of justice would not work.
- As such the King’s Court, was available only to the highest-ranking persons in the country. This, together with the limited jurisdiction of the King’s Courts, meant that they were able to co-exist with local courts.
- the King was aided in the administration of justice by a group of semi-professional skilled clerics who were part of the royal entourage. These clerics eventually took on the function of deciding disputes themselves.
- They became autonomous (able to decide themselves) from the King and established themselves at Westminster. The establishment of a fixed King’s Court was required by the Magna Carta in 1215. The King’s Council gradually developed and different ‘branches’ of the court evolved to deal with different types of dispute.
What is Curia Regis (italics)
King’s council
What is jurisdiction?
the official power to make legal decisions and judgements.
What is a centralised justice system?
where one party has the authoritative power
What are the 3 courts that developed from the Kings’ Council? And what did they deal with?
1) Court of Exchequer, dealing with royal finances. 2) Court of Common Pleas, dealing with the owner possession of land.
3) Later, the Court of King’s Bench emerged, dealing with serious criminal matters. These courts remained until the Judicature Act 1873.
What are the assize courts? What did they have jurisdiction over? And how long did they continue for?
To make provision for the administration of law outside London, royal justices were despatched to the provinces with a royal commission to hold ‘assizes’ (or sittings) of the royal courts.
- Initially the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters.
- Assize Courts continued until the enactment of the Courts Act 1971.
How did the common law start?
With time, the King’s Courts became essential to the resolution of disputes between citizens. The law which the King’s judges applied was based upon the common customs of the country, hence the term ‘common’ law. The kings court was firmly in place and recognised as supreme over the local courts by the time of the reign of Edward I (1272).
What are the different meanings of common law?
e.g. in a historical sense, in the Kings court, case law, commonwealth
- In the historical sense, to distinguish the law as applied by the King’s judges as opposed to the law as applied by the local customary court
- To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery;
- To distinguish case law – that is, law as developed by judges through the system of precedent – from statute law;
- To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law as applied by civil law countries where the law is based on Roman law (as applied, for instance, in most of mainland Europe).
What was the writ system?
- The common law which was developed by the King’s Courts was a procedural system. There was no automatic right of access to the King’s Courts. In fact no such right existed until 1875.
- To be able to pursue a claim, the intending claimant had to purchase a writ from the Chancellor before an action could be brought before the courts.
- The writ also contained the foundation of the complaint and a different form of writ was used for each ground of complaint (or ‘forms of action’). The writ system soon became rigid. The forms of these writs became fixed, and only Parliament could allow a new writ to be issued. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try.
What is a writ?
A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court.
What was a real action?
- A real action was an action in the common law courts for the recovery of land. The earliest form of real action was the writ of right. This was a direction from the King commanding the feudal lord to try a dispute about title to freehold land in the feudal lord’s local courts. The action would be resolved in a trial by battle, with the opposing parties engaged in physical battle.
