Ioanna Kafetzi
LECTURE 1: INTRODUCTION TO COMMON LAW
Common law lecture 1
Terminology common law:
Common law’
1. Legal system of England, USA vs. civil law.
2. Case law, 1250-1500 vs. local law and equity
3. Case law vs. statutory law
The first meaning of common law is that it’s used to designate the whole legal system of
certain countries, for example England, United States, Australia, parts of Canada. It refers to
a system where you have a very special collaboration between case law and statutory law.
Countries that do not have a common law system, have a civil law system. Civil law does not
refer to private law, but it usually refers to a legal system with a qualification. Usually it is a
system that is heavily influenced by Roman law. For example south America, Europe, Africa,
Russia, these are example of civil law countries. In between there are a lot of countries that
have a mixed legal system, some of these countries used to be civil law countries, but were
conquered by England for example Quebec, it used to be French, it used to have a civil law
system but is now a mixed system. Mixed means that there are civil law elements and
common law elements. South Africa is another example, Louisiana in U.S.A. (it used to be a
French colony), and Scotland. Scotland has a mixed legal system. England and Scotland have
different legal systems. Officially separated since 1707.
The second meaning of common law that it refers to a case law system. There are two
varieties of common law as case law. First is the original meaning, which is the common law
as it developed between 1250-1500. Common law refers to the fact that a legal system
developed that was the same in all of England. That’s why it is called common law (compare
it with the latin ‘ius commune’. So then in that sense case law is opposed to local law, which
was in England present before the development of the common law. England had around
1000 AB all different jurisdictions and they were all merged into the legal system common
law. After 1500 equity developed because there were a lot of problems with common law.
Finally, sometimes the common law is used just to designate a common law system, case law
system and then it’s opposed to legislation/ statutory law.
I England: common law 1050-1500
The Lord Chancellor used to be very crucial person in the English legal system. He used to be
both minister of justice and higher judge.
The interesting thing about England is that it is very old fashioned, but if you look closely,
you can see that England is adaptable to the modern times, they had a conservative façade
but in the end they are probably more evolutionary than a lot of other European countries.
You can see that if you look at the industrial revolution, you can see that because of the fact
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that trias politica was first introduced in England, probably also you can see the
revolutionary elements in the Brexit.
A. Origin
The origin of the common law. It’s relevant to emphasize that what happened in England
was unique, because all of Europe had different jurisdictions, all states were confronted
with legal diversity, all states had that problem. Only England managed to overcome that
legal diversity by creating legal unity as early as around 1200.
How did that happen?
*1066: William ‘the conqueror’ (‘the conqueror’ is between the marks because it’s still
debated in England whether he had a legitimate title or not and that’s a relevant topic,
because if he didn’t have a legitimate title to the throne, England is still occupied by the
French).
- William ‘the conqueror’ came to England around 1166 and he found local
legal systems. Local laws local courts. What conquerors usually do is that they
promise to leave that untouched. So he said: ‘I’m not going to change
anything’. The only thing that he changed was that he replaced the local
nobility by his own noble men and those noble men were part of the Curia
Regis (or the court of the king). They were French, because William the
conqueror came from Norman and he was a French ruler who didn’t speak
English. Although he promised not to touch the local legal systems but some
100 years later a development started which in the end meant that local
courts and local law lost their relevance.
How did that happen?
➔ After 1150
- Development of ‘common law’
Some court system developed slowly out of the Curia Regis. That is important
because the Curia Regis was one body and as result in the end all the law was
developed at a central point.
There were two aspects which are relevant still today:
1. First of all is the system of traveling judges. That were judges whom went
from city to city and decided cases. They are called circuit judges (they still
exist in the United States.
2. The second aspect is, most judges traveled around to new York and they
found a case that had already been prepared, by the jury. The jury from
principal they were regarded some kind of witnesses and they knew about
the local facts. So the judge does not decide on the facts (and that’s still the
case in English, common law legal system) if you look at the jury system, you
still see that the judge does not decide on the facts, he only applies the law.
That’s some kind of division of labor. It started in the early days of the
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common law, so the judge arrived, the jury had already been established by
local citizens, and then they said: ‘you tell me the facts, and I’ll make a
decision on basis of the law’. That’s why decisions of circuit judges/traveling
judges worked.
You had a brilliant combination of centralized judiciary, localized educations cases, people
didn’t have to go to London. At first the king and his court traveled all year long, that’s
catering problem. In the 12th and 13th century it is difficult to provide food for such a large
company, so he traveled from one office nobel men to another, and when the food was
eaten, he went to the next. It was for people who wanted to go to the courts, to the judges,
problematic, so the Magna Carta (1215) one of the first constitutional document of England,
it was established that cases from Curia Regis would resight in Westminster courts. The
nobles demanded that the courts would be set up in a certain place instead of being dealt
with when the king had time while traveling around, which became Westminister.
How did a case start before the Westminister court?
It looks a little bit like the Roman system, you do not have access to the courts as of right,
you have to ask the Lord Chancellor for permission. If he grands you a case, he will issue you
a writ, a document written by lord and directed at a local officer. The local officer received
an order to establish a jury. Then the judge comes along. The writs that were issued by the
Lord Chancellor on the base of a specific request, and that request was granted also
specifically. So that means that you have got a writ, and it was only valid for your case with
the specifics of your case. As a result a lot of different writs developed, and if you had a case,
if you wanted to start a case before the judge, you had to look closely at the facts of your
case and then start looking for an appropriate writ. If you had the wrong writ you couldn’t
pursue the case. Different kinds of writs:
- Writ of debt (loans and they don’t want to pay you back)
- Writ of covenant (contract)
- Writ of trespass: ‘Vi et armis contra pacem domini regis’ (acting with violence
against the peace of the king).
There were about 80 of these writs.
The question is here, why was the Westminster court a success?
The king started it and there were various reasons to why this was successful:
1. The first one is: the English legal system as a continent was a feudal legal system. In a
feudal legal system, the king is the owner of all real estate. This is in England still the
case. That means that all disputes of the land had relevance to the king. The whole
idea of roman ownership is foreign to the English, they have a feudal ownership with
very strong possessory titles, it’s very difficult to out somebody from his property
because of possession.
2. Second reason is: taxes, all conflicts on taxes went to Westminster court.
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3. Fees: you had to pay to go to court, that was relatively expensive. It was for the
judges very interesting to provide proper justice, they could ask money for it, so it
was a business. If something is a business you have to provide good services.
4. Last reason: it was a very efficient administration of justice
B) Nature
1. The common law has as its foundation :
• Custom : in England customary law an autonomous source of law,
developed by the judges, (but the judges always say, which is not true,
that, they don’t make law, they only find it). They only apply the customs.
You have to realize that customary law is very much the principal bottom
up, and compare that to legislation which is the second source of law.
Legislation is by nature top bottom. What you see in England is that those
two sources of law exist more or less next to each other.
So the foundation of common law is customary law, Usus and opinion iuris
(the fundaments of customary law).
• Declaratory doctrine of common law
2. Characteristics
It is a limited jurisdiction, and that is because of the writs system, because
only if there exists a writ you can start a case. No writ no case. Which means
that procedure is very important (importance of procedure). Ubi remedium,
ibi ius:the law provides many types of remedies for legal breaches.
So in this law for that reason spends a lot of time discussing procedures.
Procedures are very important in the minds of the English nobles. Of course
case law system is important, the whole system of stare decisis where
principal next judge is to a certain extend bound to previous judges. And
finally the Division of labor. What does the division of labor look like? First of
all, the interesting thing about English law is that there is a development of
legal unity, but it was never completed. The second imoortant devision of
labor is between judges and the jury. Because the judges only have to know
something about the legal rules, and finally, that’s the idea that the judges
come to you, you don’t go to the judges. Nisi prius, you only have to go to
London for a case if a case cannot be dealt with locally.
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