What is law, and where do we find it?
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History of the Common Law Katarzyna Gromek Broc University of York
History of the English Common Law Developed in England after the Norman Conquest 1066 (Battle of Hastings) Developed as result of the judgments of the Royal Courts of justice (esp. since 13th C)
History of the English Common Law: Anglo-Saxon period (5th to 11th Century) - Little is know about the law in this period
beyond that is was rather primitive and influenced by Roman law. – Strongly based on local customs that varied from place to place. A clear lack of consistency. – An Anglo-Saxon of fortified towns (Burh) maintained the peace through a form of local policing in groups of men where each men is mutually responsible for whatever a member of the group does. – After 1066 it became known as the ‘frankpledge ’ and became non-voluntary Pag.
History of the English Common Law: Anglo-Saxon period (5th to 11th Century) - lack of effective central government. Royal justice was difficult to obtain. - Following the 11th Century-Norman period under leadership of William of Normandy who gained the Crown of England (1066): centralised and effective justice is organised
History of the English Common Law: Norman Period - Groups of rebels were disbanded. - a centralised administration was set up under the King’s authority (Curia Regis – King’s Council) with the local noblemen and spiritual leaders. - Historic basis of current land law of England – King: owner of all land – Lords, Barons, Bishops: tenant or sub-tenant in exchange for an oath of allegiance to submit to Royal control - Separation of lay courts and clerical courts - Local justice maintained. King exercised “high justice” exceptionally. Pag.
History of the English Common Law: Norman Period - The King’s Council (Curia regis) performed legislative, executive and judicial functions. - As a court for the most important persons and disputes and not to commoners. - From 13th Century, Royal Courts developed out of King’s Council (located at Westminster) - Local courts under Barons had exclusive jurisdiction Pag.
History of the English Common Law: Norman Period - Royal courts had limited power to intervene in the domain of barons serious criminal matters affecting the peace of the Kingdom - royal finance - land law -
- Royal Courts received fee for their services (motivated them to hear more cases) - Royal Courts had different procedures
– Procedure in local courts was arbitrary and outdated – Royal courts had procedural powers including summoning witnesses and enforcing their judgments Pag.
History of the English Common Law: Norman Period Royal courts grew in popularity and gradually took monopoly of justice (to detriment of local courts) BUT until the 19th Century, citizens did not have a the right to bring a case before a Royal Court. It was a favour to be granted by the Royal authority. A citizen would ask the Chancellor (judge) to deliver him a “writ”. Such a writ would enable and entitle the royal courts to accept and analyze the issue following the payment of the required fees
History of the English Common Law: Norman Period - Royal judges started travelling round the country to dispense justice in county courts. At the local level, they determined and applied local customary law. - In the 12th and 13th Centuries, juries were introduced, made up of local people who knew the facts and the relevant local custom
History of the English Common Law: Norman Period The Royal courts started taking notice of each earlier decisions, including each other’s decisions, leading to the development of the principle of stare decisis
– Natural development to follow earlier decisions because of convenience. – Contributed to consistency of the legal system – Law becomes more predictable and more certain – This development led to the gradual emergence of a common law in England; a system of legal rules common to the whole of England (esp. after 1707) Pag.
History of the English Common Law: Norman Period - Problem was that the system of writs was a procedural system to access Royal courts and did not provide guarantees for substantial justice. - This supremacy of procedure led to a system that did not deliver real justice - Citizens appeal to King when justice not obtained
History of the English Common Law - The appeals to the King become a normal part of the system with a separate set of rules distinct from the common law
- King delegated power to the Chancellor to make these decisions on his behalf – the emergence of the Court of Chancery. The cases were decided on the basis of the equity of the cases – the equity doctrine developed to correct the common law as applied by the Royal courts From 17th C: existence of a dual system of common law and equity. Pag.
History of the English Common Law
The English law thus distinguishes common law and equity.
In the 19th Century common law and equity law are merged into one legal system and are applied by the same courts.
Examples of disciplines of law Tort Law Posner:"a term applied to a
miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages."
Tort Law The aims of the law of tort have changed throughout its history: appeasement, justice, punishment, deterrence and compensation can be counted amongst them. Pag.
Tort Law Appeasement aims at buying off the victim’s vengeance. Justice or moral condemnation embodies the idea of “ethical retribution”. The punitive element in tort litigation is minimal. Pag.
Tort law What is its purpose? the aim of compensation, modern tort law’s prime function.
Tort law The nineteenth century moralists claimed that bad people should pay and very bad people should pay more and their sayings had obvious appeal to the public. Persons not at fault could not be liable for the damage they caused.
Tort Law The idea of dividing the common law into such branches as contract and tort is relatively modern. Since 1970 torts are classified by reference to the degree of intention or negligence necessary to support an action
Torts may be categorised in a number of ways.
The dominant action in tort is negligence. The tort of negligence is designed to protect legal rights, including those of personal safety, property, and, in some cases, economic interests. Negligence actions primarily include claims from traffic accidents and personal injury accidents of many kinds. Negligence depends on the existence of a breach of duty of care owed by one person to another person. Pag.
Tort Law Intentional torts are reasonably foreseeable to cause harm to an individual, and that do so. An intentional tort is the tort of nuisance, which connotes strict liability for a neighbour who interferes with another's enjoyment of his real property. There is also a tort of imprisonment, and a tort of defamation, where someone makes an unsupportable allegation which damages the reputation of another. Pag.
Tort Law The term “nuissance” is traditionally used to describe an activity or condition that is harmful or annoying to others, or to describe the harm caused by such an activity or condition, or a combination of the two.
Walking through the case Attorney General v Scotcher How do we reference it? Which Court delivered a decision? Who are the judges? Deciding panel? Pag.
Walking through the case How the case is structured? The facts, the appeal, referencing, Invoking other material (Convention, cases, reasoning behind cases) Pag.
Scotcher Reasoning in Mirza, Judicial dialogue and controversy: the form, the language Applying the Law, Outcome of the case Pag.