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4000CLS LEGAL METHODS WEEK FIVE AND SEVEN
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4000CLS LEGAL METHODS WEEK FIVE AND SEVEN
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14000 CLS legal method
WEEK FIVE AND WEEK SEVEN
The development of Common Law and Equity (week six doesn’t have any information
except a diagram of a court structure and well… it’s explained in the previous week - three and four)
The Common Law
The common law can have a number of meanings. As previously explained, the common
law may be used in different contexts to mean different things:
- the law ‘common to all the land’ (see below)
- The common law is distinct from equity (see below).
- The common law (judge made law) as distinct from statute law.
As a common legal system.
The development of the common law.
Before the Norman Conquest in 1066, there was no national centralised legal
system in the United Kingdom.
The country had various kingdoms, and in each kingdom, the law was based
on local customs. This is known as customary law.
The customs varied according to the area that you lived in and were largely
based on local oral traditions.
Subsequently, various courts emerged and a circuit system was gradually developed.
common law courts - the Court of the Exchequer, the Court of Common Pleas, the Court of
King’s beach.
Local rules were slowly eroded and replaced by rules of general application. During the
reign of King Henry II (1154-89), a system of case law gradually evolved throughout England
and Wales - this became known as the common law ( ‘ common to all’)
However there were a number of problems with the common law as it developed. The writ
system. A writ what it should whereby a civil dispute was brought before a Royal Court. a A
Register of writs were available and the facts had to fit the writ (‘a writ to fit’). The Provisions
of Oxford 1258 prevented the Chancellor’s Office from operating new writs.
, 2
The pleadings had to be accurate. The smallest mistake could result in the writ being
rescinded. The plaintiff [claimant] would have to start all over again.
The cello lent of the common law: Problems with the CL.
Other problems include: problems with the precedent ( The formal system of precedent was
not fully developed). Previous decisions had to be followed and could not be distinguished.
This meant that the parties could not persuade the judge to change the law, even if it was
obviously in need of change.
There was no effective appeal system and corrupt court officials often delayed proceedings.
The common law was also defective because the law of contract was on developing and
inadequate to serve the needs of a growing economy.
The courts larger restriction to decide some cases, e.g. where foreign merchants were
involved. Finally, the only remedy available at the common law was monetary compensation
(damages). This was not always satisfactory.
The development of Equity
The common law cannot remedy its defects. There were complaints and the King was
petitioned.
As the number of petitions grew, the King passed over to his Lord Chancellor (‘Keeper of the
King’s conscience’). The Lord Chancellor was always a clergyman (as The church
possessed A virtual monopoly of education), and trained in existential or canon law, which
was based on Roman law.
When considering these petitions, the Lord Chancellor slowly develops his own sets of rules,
based on principles of natural justice and fairness. These rules became the rules of equity.
Equity (‘aequitas’) simply means fair or just.
The Lord Chancellor would make a decision based on what seems “right“ In a particular
case, rather than the strict form of your previous precedent. He was also prepared to look
beyond legal documents and take into account what the parties had intended to do.
This often led to inconsistency, and the early times it was said that, in “Equity varied the
length of the Lord Chancellor’s foot” Meaning that, a different chancellors were appointed,
different values were applied to Equity.
Justice was appointed in those cases where the parties were able to show that the common-
law courts were not able, or prepared, to provide a suitable remedy.
The ball chance of that established a quarter of Chancery in 1474, to deal with a growing
number of petitions.
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