The history of Enlgish law

INTRODUCTION

Anglo-American system of law has been relatively mature for the past eight hundred years. It was preceded by the old and almost lost legal system of the Anglo-Saxon and finds its remote origins in the laws of Germanic tribes, which settled England in the middle of the first millennium.

THE CREATION OF COMMON LAW SYSTEM IN ENGLAND

The term "common law" refers to the system of law developed in England and transferred to most of the English-speaking world.

Before the Norman Conquest (1066) of Ancient Britain, there was no body of law, which could be called English law. Anglo-Saxon law was custom and custom was law. Life was governed by customary rules. Pre-Norman government was decentralized. Each county was divided into administrative units. Each local community had its own court by which local custom was enforced.

Courts at the time of Conquest were (1) the communal courts of the shire and hundred, (2) the seigniorial courts and (3) the borough courts.

The creation of the uniform system.

However, important changes occurred over the three centuries following the Norman Conquest.

During this period, the courts of the King of England gradually gained control over the local courts.

In the reign of Henry II (1154-1189) there began a series of events that resulted in a system of royal courts and a law common to all of England.

These courts, consisting of (1) the Court of Exchequer (of Pleas), (2) the Court of Common Pleas and (3) the Court of King's (Queen's) Bench were royal courts set up by the Crown to supersede a network of loyal courts which were Anglo-Saxon in origin. When the royal courts, which were centralized and had jurisdiction over the whole country, came into being, they evolved and applied a uniform system of law, common throughout the land. This law became known as "common" to distinguish it from older, local laws.

THE CASE LAW

In England, in contrast with older European countries, which followed the Roman traditions of codification and derived their law primarily from enacted codes, the law has traditionally been built up from court decisions.

Where a court decides an issue between plaintiff and defendant, there are three separate elements involved:

1) the facts of the case as proved by the parties;

2) the principle of law applied by the court to those facts (ratio decidendi);

3) the resulting decision in favour of one of the parties.

The decision of the court is binding on the parties to the action. The principle of the court decision may become binding on other parties in future cases. The principle becomes part of the common law.

This principle of the decision is called the ratio decidendi of the case.

The ratio decidendi is the answer to the question: "what principle should have been applied to the facts to achieve this decision?"

It is an important part of the lawyer's craft to be able to state the ratio decidendi of the case accurately and in the form best suited to this case (in which he is engaged).The ratio decidendi of a case may become a precedent to be followed (applied by the court in any future case). Precedent thus provides a body of judge made law, often called CASE LAW.

All precedents are considered as authoritative pronouncements of the law. The authority of the precedent depends upon the status of the court giving the decision (the hierarchy of the courts):

1) the House of Lords (the highest appeal court in the land);

2) the Court of Appeal (Civil and Criminal Divisions) decisions are binding for the courts inferior to it;

3) the High Court of Justice;

4) the Court of Justice in the European Communities. The most important bodies of case law are THE COMMON LAW and THE LAW OF EQUITY.

EQUITY

People who had failed to obtain justice in the common law courts presented petitions to the King's Council, which dealt with petitions from subjects seeking justice from the body closest to the king.

The Chancellor was closely associated with the administration of justice. He was also the King's right-hand man and a member of the King's Council. Being closely associated with King, he was bound by neither the rules nor the procedure of the common law courts. Furthermore, he was not likely to be influenced by any man. As result, Chancellors began to evolve a set of rules, which remedied the defects in Common law; they granted new remedies based on just or equitable decisions. The decisions became known as rules of Equity.

Basically, the courts applying equitable principles acted when the common law courts would not act or reached results that were so strict and technical as to be unjust. By the end of the fifteenth century, the Chancellor was acting in judicial capacity upon its own initiative. The Court of Chancery really began at this moment.

The Court of Chancery was merged into the High Court (Supreme Court) by the Judicature Acts of 1873 and 1875, and was renamed the Chancery Division of the High Court of Justice.

Common law and Equity can now be administered in the same courts. Therefore, in any case, a judge can give either a common law remedy or an equitable decision, or both.

STATUTE LAW

Common law jurisdiction, of course, relies on statutes as well as on court decisions. Much of the law, particularly that relating to criminal justice, is Statute law resulting from Acts of Parliament.

By now, almost all actions for which a person may be punished are actions, which are specifically forbidden by some statute or other. There is a sort of criminal code scattered through a large number of laws.

THE SOURCES OF MODERN ENGLISH LAW

Almost all rules of law owe their existence either to Act of Parliament or to decisions of the courts.

These sources of law give authority to the rules making them part of the law. But there are two subsidiary sources of law, namely local custom and books of authority. These sources once enjoyed a considerable significance, but nowadays are sources which support almost all rules of law.