History of the Common Law
Katarzyna Gromek Broc
University of York
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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)
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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
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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
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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.
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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
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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
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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
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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
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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)
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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
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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.
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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.
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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."
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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.
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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.
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Tort law
What is its purpose?
the aim of compensation,
modern tort law’s prime
function.
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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.
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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
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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.
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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.
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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.
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Walking through the case
Attorney General v Scotcher
How do we reference it?
Which Court delivered a
decision?
Who are the judges? Deciding
panel?
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Walking through the case
How the case is structured?
The facts,
the appeal,
referencing,
Invoking other material
(Convention, cases, reasoning
behind cases)
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Scotcher
Reasoning in Mirza,
Judicial dialogue and
controversy:
the form, the language
Applying the Law, Outcome of
the case
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