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Lecture notes - Introduction to Common Law
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Lecture notes introduction to common law. Chapters 1-5, 7-8 & 12.
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Summary Introduction to Common Law (RUG)
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Alle stof voor het vak Common law incl. alle jurisprudentie. Cijfer: 9
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Lectures introduction to common lawLectures week 1 and 2
Week 1
‘Common law’
1. Legal system of England
2. Case law (vs. local law and equity)
3. Case law (v statutory law)
Origin
Until 1150
- Local court, local law
- England was divided in regions, each region had its own system, court. Then it was
concurred by William the conquerer (1066).
- Curia Regis
After 1150
- Development of common law
How?
From the curia regis, civil servants resent trough the country to get the taxes = General Eyre
(they dealt with the issues). So, from this circuit judges developed
Courts of assizes, jury consisted of local people which knew about the local law. Judges were
at first not educated, but they specialized and became real judges. They developed the
common law and took away the function of the jury. The only function left for the jury was
to establish the facts.
The judges were members of the curia regis, the king was traveling around all the time, if
you had a lawsuit, you had to travel with him. That’s why the nobles demanded in the
mangna carta that the cases would be decided in one specific place, so that they did not
have to wait for the king and travel with him. The specific place became Westminster.
Result: Westminster courts:
- Court of Exchequer (taxes)
- Court of the Kings Bench (cases relevant to king)
- Court of Common Please (cases not relevant to king)
The foundation of case was always a writ. A writ is a letter from the lord chancellor ordering
a local official to assemble a jury. The case could only start on the basis of a writ. The lord
chancellor then said, I have heard the complaint and order to assign a jury. The writs were
asked for by claimant/plaintiff in a civil case. It was for a specific case, for example the writ of
debt or the writ of covenant. The whole legal system became developed along these kinds of
writs, on the basis of specific cases.
, Why? Were Kings courts so successful? William the conqueror introduced a feudal system in
England, this meant that the King was the owner of all real estate. So, all conflict of land was
related to him, because he was the owner of all the land.
Nature
In English law you have several sources of law, the common law is only one of them, but it is
a very important one. Equity, common law and statutory law all have their own foundation.
The foundation of the common law is the custom. Local custom was transformed into a
national custom, but was still a customary rule, declaratory doctrine of the common law,
judged argue that they do not make the law, but only find it. But this is not true.
Foundation: Custom, Declaratory doctrine of the common law
Characteristics: Limited jurisdiction, because you need a writ, if there is no writ that suits
your case, then there is no judicial procedure. These writs were made by the Lord
Chancellor, so basically, he made the law.
1050-1500
- Importance of procedure (ubi remedium, ibi ius)
- Case law (stare decisis = that was a tendency to stick to previous decisions, not exactly
the same of the doctrine of precedence. Stare decicis is only that judges have a tendency
to do what they have always done, not an official doctrine).
- Division of labour (local judges, jury, statute of Westminster, nisi prius) the legal system
of England became centralized in London, this was uncommon, the only reason why it
was possible was because of the division of labour, local judged who took a lot of cases.
The judges did not have to look at the facts anymore, this was the jury’s work, they only
had to apply the law, so less work.
Problems with common law became apparent around 1400. Reasons for example the
provisions of Oxford, are decisions by parliament, the prohibition to issue new writs. So, this
made the system inflexible, because had to stick with the only 80 writs that were issued.
Lawyers always found a way around this problem. But this was complicated. For example, in
the statute of Westminster, the parliament aloud the lord chancellor to issue cases in
analogy, in consilmili casu.
Bukton v Tounesende > trespasse on the case. Question was; which court was competent;
can you access a royal court? You had to ask for a writ to access, so you had to ask yourself
which writ fits the case. They asked for a writ of trespass, this was a strange situation. The
lord chancellor argued that the man had a public duty in transport safely the sheep, not a
private owner towards the owner of the sheep, but a public duty, he violated and for that
reasons he was trespassing. Not complying with your contract results in a specific tort, so
with this trick the owner got access to the court.
- Decline of local courts
- Procedural hardship> if you had a wrong writ, you had to pay for a new one.
- Limited remedies > at common law you could only ask for pecuniary remedies, so not
tryst, injunction or specific performance, so you could not make sure it would not
happen in the future later.
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