INTRODUCTION TO COMMON LAW – SUMMARY
Lectures 1 & 2:
Terminology
Common law:
1. Legal system of England & USA (as opposed to a continental civil law system)
Common law vs qualified legal system. Main distinction between common law and civil law:
Civil law legal systems tend to consist of a codified body of legal principles which exert
considerable control over judicial decision making. Common law legal systems are
characterised by a case-centred approach.
2. Case law, 1250-1500 (original meaning) vs. local law and equity.
Refers to common law as it came into existence since 1250. Common law means law that is
common to the whole of England, in opposition to local law, which was in existence before
1250. After 1500, equity came into existence.
3. Case law vs. statutory law
Common law, 1050-1500
Origin
Until 1150
Local courts, local law
1066: William the Conqueror
Curia Regis (King’s Council): administered all of the King's business – financial,
legislative, and judicial. From the Curia Regis developed the common law courts, the
Chancery, and even the Parliament.
After 1150
Development of ‘common law’. How? court system. Henry II (1133-1184):
General Eyre. Was introduced as an attempt to ensure a greater uniformity in English
law. Representatives of the King were sent from Westminster on a tour of the Shires
for the purpose of checking on the local administration. During the period of their
visit they would sit in the local court and hear cases. Later on replaced by circuit
judges, who heard pleas in the major places they visited and took over the work of
the local courts.
Courts of Assizes (jury): when the judges arrived at the local spot, they already found
established Facts (established by the jury), so they only had to apply the law. In
relation to criminal law, there should be 12 men in every county to be responsible for
presenting to the sheriff those suspected of serious crimes. The accused were then
brought before the General Eyre when it arrived in the area.
Magna Carta (1215): the court had to stay in a specific place. At first, those wishing to
complain had to follow the King both at home and abroad, but the Magna Carta
provided that what is now called the High Court should stay ‘in some certain place’.
You had fixed courts in London, and from there, judges travelled certain routes.
Result: Westminster courts
Court of Exchequer: taxes (disputes connected with royal revenues)
Court of King’s Bench: cases relevant to King (disputes between subjects and the
King)
Court of Common Pleas: cases not relevant to King (civil law, disputes between the
King’s subjects)
,How to get access to the Court?
You didn’t have general access to a court, you needed permission of the Lord Chancellor to
bring your case forward. If so, you wrote a ‘writ’ which needed to be sent to a functionary at
a local place (e.g. a sheriff), who ordered the assembling of the jury, which would start the
case. Without a writ, there’s no law on the subject. So then there came a ‘register brevium’
into existence: a registry of the writs.
Writ of debt
Writ of covenant (contracts)
Writ of trespass (with force and or weapons against the peace of the King)
Why were the King’s courts popular? (since they were pretty expensive and getting a writ took time
and effort)
a. Feudal law
King was the owner of all real estate (though ordinary people could still have strong ‘owner
titles’). So all conflicts concerning possession of land was relevant to the King. Ownership
versus possession.
b. Taxes
King’s courts usually manned by clergy. The methods of proof developed were very rational
(written proof, witnesses, etc), as opposed to the proof system of the countryside.
c. Fees
You had to pay fees to go to court.
d. Efficient administration of justice
Nature
1. Foundation
Custom: the basis of common law is customary law (vs. natural law). It is not the
judicial decision itself that is the origin of common law.
‘Declaratory doctrine of common law’: if a judge gives a sentence, he doesn’t make a
law, but only declares a custom.
2. Characteristics
Limited jurisdictions: not general. You can only go to a court with the permission of
the Lord Chancellor. You also need a writ, and if your case doesn’t fit a writ, you
don’t have a case.
o Writ: royal order. Examples:
Of debt
Of trespass
Importance of procedure
There was only a remedy for your problem if you were allowed in court. Law does not
exist prior to the remedy, but follows the remedy.
Case Law
Common law in this era was mainly case law. (principle of stare decisis: doctrine that
says that the judge will try to adhere to previous judicial decisions, not the same as
binding precedent, because judges may find precedent case law wrong and therefore
may not want to apply it).
Division of labour
o Local judges
o Jury
, o Statute of Westminster (1285)
‘nisi prius’: it’s possible to have cases decided locally. You only brought a case
to Westminster ‘nisi prius’, if it had not yet been decided locally (the local
sheriff had to send a jury to London unless before the appointed time the
royal justices came to hear the case locally, which in practice they always
did).
Development Equity
Problems with common law
1. Provisions of Oxford (1258): political cause.
Essence: the Lord Chancellor was forbidden to issue new writs, apart from the ones
that existed. The Parliament didn’t want the King to hold all the power over the law?
Inflexible: no new statues or writs were issued. Parliament realised this, so allowed
the King to issue writs on the basis of analogy.
But: Statute of Westminster (1285). New writs could be issued ‘in consimili casu’ (in
similar cases), thus adapting existing writs to fit new circumstances.
o Bukton v Tounesende (1348): ferryman had a contract to transport sheep
from one side of the river to the other. But the boat was overloaded, so the
sheep drowned. The owner wanted damages and took the case to the King’s
court. But he didn’t make a deed, didn’t put the contract into writing, so they
didn’t take the case. But they tried to take the case to court with a writ on
trespass. Usually, this wouldn’t work, but the courts still decided to hear the
case eventually. Trespass on the case: reasoning by analogy to allow the case
in court. They applied trespass on cases like this: the ferryman has promised
to transport the sheep and has a public duty to do so properly. This resulted
in the strange phenomenon of trespass on the case.
2. Decline of local courts
The local courts disappeared because common law had appeared.
3. Procedural hardship: even the smallest error in a writ would avoid the action. The system
worked well in local courts where the witnesses knew the parties and circumstances of the
case, but in cases brought at Westminster witnesses were often hired outside Court to speak
in favour of the accused.
4. Limited remedies: only pecuniary.
In common law, you only have limited remedies. You usually sued for money. You couldn’t
ask for:
Trust: not accepted by common law. In equity, the phenomenon of trust was
developed;
Injunction: you had to wait until the damage was done and then you could sue for
money;
Specific performance.
Solution: equity.
1. Foundation: ‘conscience’ (if you didn’t agree with a ruling of a common law judge, you could
go to the Lord Chancellor and ask for a solution on the basis of reasonable …, after which the
Lord Chancellor decided on a remedy).
King and Lord Chancellor
, Subpoena instead of writ. Subpoena = form of summons issued by the Lord
Chancellor to bring persons before him. Did not state a cause of action but merely
told the recipient to appear in Chancery.
2. New remedies
Injunction: Chancellor could stop a person from carrying on a wrong. Don’t apply for
a writ, but go to court of Chancery.
Specific performance: Chancellor could compel a person to perform his obligations
Trust: persons could be made the legal owners of property as if no other interests
existed. Not accepted with common law, but allowed with equity. It was possible to
lose a case with common law, but then go to the Chancery and win.
3. Characteristics
Case law: stare decisis (standing by previous decisions). When a judge decided a new
problem in a case brought before him, this became a new rule of law and was
followed by subsequent judges.
Ones who come to equity must do so with clean hands: equity will not allow a party
to profit by his own wrong
A person who seeks equity must do equity: in order to receive equitable relief, the
petitioning party must be willing to complete all of its own obligations as well.
4. Relation common law – equity
a. ‘parallel systems’. Equity became a system of case law governed by the binding force of
precedent.
b. ‘equity is complementary to the common law’
c. By conflict
Equity will prevail over common law (Earl of Oxford case, 1615).
Reforms 19th century
Problems with equity
1. Uncertain jurisdictions
2. Chancery Court was slow
3. System of Precedents is
Inflexible:
Priestley v Fowler, 1837: employer – employee. Especially when the employee incurs
damages. The case was about an employee who was ordered to take meat to the
market with a carriage, but argued that this couldn’t happen because the carriage
was faulty. The carriage broke down and the employee had to be nursed for three
weeks. Employer wanted damages for these 3 weeks. Judge: employee not liable.
Employee works with the carriage and knows best whether it works. Once the case
was decided, it became precedent that no other judge could deviate from. No
general rule, development of the law completely dependent on the cases brought
before the court. Sometimes judges use a case to develop law that is not directly
related to the case, just so they can make law.
Complex
‘dog law’: Bentham, student of William Blackstone (‘commentaries on the law of
England’). Mainly important for criminal law. Common/case law system also counts
for criminal law.
Reforms
Court system/procedure
, Judicature Acts (1873-1875)
1. Fusion of Courts
One High Court, three divisions:
o Queen’s Bench Division (for common law cases)
o Chancery Division (for equity cases)
o Family Division (for, e.g., defended divorce)
One Court of Appeal
Magistrate’s courts (ca. 1000): petty crimes (e.g. traffic) and some family law
(e.g. adoption orders and custody)
Crown Courts (ca. 100): serious crimes
County Courts (ca. 270): smaller private claims in tort, contract
2. All courts apply both Common law and Equity. The Judicature Acts did not combine
common law and equity, but simply their administration within the courts.
3. Writ-system abolished: ‘writ of summons’ privately issued
Codification? No because,
1. No legal diversity. Codification on the continent was to solve the problem of legal diversity.
England already had a unified legal system since 1250. One centralized court. So no need for
codification.
2. Edmund Burke
Conservatism
o ‘organic growth’
o The ‘German Savigny’ (who stopped Germany (or France?) from codifying)
‘the life of the law has not been logic but experience’ O.W. Holmes
England: statutory law
Parliament’s increasing involvement with economic and social affairs increased the need for
statutes.
A statute is the ultimate source of law, and, even if a statute is in conflict with the common
law or equity, the statute must prevail.
The main body of law is to be found in statutes, and in case law.
An Act of Parliament is binding on everyone within the sphere of its jurisdiction, though it
may not be binding if it infringes the Treaty of Rome (as the Factortame case shows).
Statutes: general
1. Since 12th century!
King (from 14th onwards: in Parliament)
‘Provision’, ‘Act’, ‘Bill’
2. Relation Statutes – Common Law?
Statutes supreme.
o Parliamentary sovereignty.
But: ‘remedial to common law’
o Strict interpretation. Tea Act (1773)
Parliament is the supreme lawgiver, and the judges must follow statutes. Nevertheless, there is a
considerable amount of case law around Acts of Parliament and delegated legislation since the
wording sometimes turns out to be obscure. When the meaning of a section of a statute is not clear,
a judge must decide the meaning, thus even statutes are not free from judicial influence.
