What is Common Law?

Blackstone The Common Law"... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law." Sir William Blackstone 1723-1780Commentaries on the Laws of England Four Volumes published between 1765-1769

"IT IS BETTER THAT TEN GUILTY PERSONS ESCAPE THAN ONE INNOCENT SUFFER. SIR WILLIAM BLACKSTONE

The development of Common Law

William the Conqueror 1066-1087

Early illustration of trial by combat

Trial by ordeal

Until banned in C13th trial could be by ordealMale serfs underwent trial by waterFreemen and all women, trial by hot iron. If a person was innocent God would perform a miracleThere was also trial by combat - "wager of battle.

The Curia Regis Kings CourtUsed by William I to govern the country and as court for deciding disputes

Juries and the shires

Takes throne after generation of civil warKeen to regain controlInstitutionalised common law Court system common to the countryKings Bench in WestminsterJudges go on circuitEliminated arbitrary remediesJury system of citizens sworn on oath to investigate criminal and civil matters

Henry II 1154-1189

Spread ofCommonLaw

Kings courts12thCenturyEngland & Wales

Case report from reign of Edward IIIEarliest Law Reports Date from C13thThe Year BooksThe oldest available law reports cover the period c.1272 (the early years of Edward I's reign) to 1535.

They are written in legal French or Latin and were produced anonymously

Feudal times

The Assize system lasted until 1971Current Circuit system - High Court judges sit in London and travel around the countryThe Court of King's Bench at work. C15th illuminated manuscript

Henry II and the jury1166 Royal EdictGrand Jury jury of presentmentFollowed by ordealPetty jury - Trial jury used to decide guilt after abolition of trial by ordeal in 1215

Reflections

Peaceful Resolution of Disputes

The ending of blood feuds in England coincided with the establishment of the Kings Courts in the 12th CenturyThe justification of a legal system and procedures must be one of lesser evils - that legal resolution of disputes is preferable to blood feuds, rampant crime and violence. [Bayles 1986]Romeo and Juliet

The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities.Eduardo Couture (1950)

The courts are public sites for justice

Countries marked in red at those with a Common Law legal system

Features of Common Law SystemsOrigins in English Common LawNot always a written constitution or codified lawsJudicial decisions binding decisions of highest court only overturned by same court or through legislationEverything permitted that not expressly prohibited by law

So what is Common Law?Laws of the land created by judges, as opposed to that created by Parliament, through written legislation or Acts of Parliament.

The Common Law comprises the laws, or legal principles, articulated in the decisions of judges in individual cases in court. So common law is also sometimes referred to as case law. The common law develops by judges following the decisions of other judges in earlier cases. What is known as the doctrine of precedent -the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge

So when we ask, what is the law governing the formation of contracts or what is the definition of murder - in order to find the answer to those question, we look to the law reports of decisions that judges have made in previous individual cases.

So in the law of contract rules about offer and acceptance the formation of contract are found in common law decisions. But unfair terms dealt with in the Unfair Contract Terms Act 1977

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The Common Law was well described by a leading jurist Sir William Blackstone who was a lawyer and Oxford academic. Gave series of lectures in Oxford in 1753 published as Commentaries on the Laws of England in four volumes between 1765 and 1769, which systematized and clarified the amorphous body of English Law.

The Commentaries are the first attempt to state the entire corpus of the Common Law

The Commentaries are viewed as the most comprehensive summary of the entire body of English law ever compiled by a single author. Their clarity, sophistication, and formality have caused them to be highly regarded. While studying to be a lawyer, Abraham Lincoln reportedly read Blackstone by candlelight.

You may not realise it but Blackstone is responsible for many phrases which we use every day. For example:

*Interesting aside Sir William Blackstone

This refers to the principles that underpin our criminal justice system *So how did the Common Law Develop? A reasonable starting point is in 1066 with William the Conqueror. *It is possible to date the modern development of the English common law back to the time of William the Conqueror who invaded England in 1066. (although there was already a functioning system of law and local justice) in the counties or shires.

*In reality much fatter than thisBefore the Norman conquest in 1066, different parts of England were governed by different systems of law often deriving from various invaders. For example there was Danelaw in the North, Mercian law around the middle and Wessex Law in the west and South west. .So before the Norman Conquest of England in 1066, there was no unitary, national legal system. The English legal system involved a mass of oral customary rules, which varied according to region

Each county or shire had its own local court dispensing its own justice in accordance with local customs that varied from community to community and were enforced, sometimes in a rather arbitrary fashion by local lords or landowners

These local courts are not what we would recognize as courts today.

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For example, courts often consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to show their guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other test of veracity.

If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. The idea was that if the person was innocent, God would intervene and perform a miracle.

It seems that there were more acquittals than convictions so perhaps it is not quite as brutal as it sounds.

We will come back to this when we look at how juries were used but it is worth saying that Williams son, William II Rufus (1087-1100), eventually banned trial by ordeal reportedly because 50 men accused of killing his deer had passed the test and it was condemned by the Church in 1216.

*William as King of England laid the foundations of the legal system. He understood that in order to exercise real power over citizens he needed a central system of justice over which the king had control and had laws that would be obeyed. How did he do this??William the Conqueror (William I) created what was called the Curia Regis Kings Court. It was a court of law but also a royal household comprising the King and some of the most powerful men in the country. The Curia Regis would be an advisory body for the King but also people would bring disputes to the King to resolve.

This was a time when the country was not heavily populated. People could not read and write and travel was difficult. The roads had not been repaired since the Romans left 800 years earlier.

To maintain authority over the kingdom English kings would travel around the country taking their court and courtiers with them.

William did the same and with his advisers attached to his Curia Regis. As the King and his court travelled around, people would come with grievances complaints or accusations and the advisers would give judgment. The king would literally sit on a bench to hear cases in his own court. This is why one of the most important courts became known as the Court of Kings Bench. [Think of MPs going to their constituencies to hear complaints and issues of the local electors]WE CAN SEE THIS ACTIVITY AS THE BEGINNINGS OF THE COMMON LAW SYSTEM.

*William also integrated the jury into English justice. Under the jury system a royal minister or justice, who was usually a clergyman, would go out into the country to determine the wealth of the manorial estates for the purpose of taxation. The minister summoned a group of twelve free men together and asked them to testify under oath about the value of each estate. This assembly of free men was called a jury. Eventually the jury also became the body responsible for finding facts and issuing verdicts in civil and criminal cases.

The jury became primarily responsible for deciding factual questions. The role of the jury was expanded in the twelfth century by Henry II. *After Williams reign there was a fair bit of disruption. Much fighting between heirs. But the next important landmark in the development of the common law was the reign of Henry II who came to the throne in 1154. [One of what is known as the ANGEVIN Kings because of their connection with Anjou in France [Henry II, Richard I and John (last of Angevin Kings). Followed by Plantagenets.*Things so bad under Stephen that it used to be said that it was a time When God and all his angels slept.But probably the most important contributor to the development of the common law was Henry II who came to the throne in 1154 [Henry II one of the Angevin Kings]. Prior to Henry taking the throne there had been a long period of disruption and civil war. [Matilda, Stephen]

Henry took the throne wanting to regain stability, reform land law and deal with rampant crime.

Henry II played significant role in the development of legal system. He was focused on creating a single system of justice for the whole country that would be under the control of the king.

It was under Henry II that judges were for the first time sent on circuits. At that time there were only 18 judges in the whole country. Henry ordered five to remain in London and take over the cases that he would have decided. These were the Kings Bench of judges sitting in Westminster.

**In 1166 Henry issued a Declaration at Assize of Clarendon (assize = early form of Kings Council or sitting of court) that remaining judges would be sent out to travel to different parts of the country.

When the judges travelled they had to apply the laws that had been made by judges at Westminster.In this way, local laws were replaced by new national laws. Laws that were common to all. The common law.

The travelling judges formed a nucleus of judges with national jurisdiction who had no local roots. They were thus less susceptible to corruption which is more likely if a judge is based in the local community.

In time the decisions of the judges were written down. As the decisions of these courts came to be recorded and published, so the practice developed where past decisions (precedents) would be cited in argument before the courts and would be regarded as being of persuasive authority.

Year Books are the law reports of medieval England. The earliest examples date from about 1272, and the last in the printed series are for the year 1535.

The Year Books are our principal source materials for the development of legal doctrines, concepts, and methods from 1290 to 1535, a period during which the common law developed into recognizable form. More than 22,000 individual reports or 'pleas' have been printed, and others remain in manuscript.

Written in French or Latin*So gradually common law slowly spread through the country. As the Royal Courts became established and developed, this reduced the role of other, alternative decision making bodies. But Judges under this new common law also recognised local customs when dealing with disputes, and took these into account when making decisions and developing new legal rules and principles

The content of most of the law was mainly directed at preventing bloodshed by recognising rights to property and personal freedom..

So that is a rather basic introduction to the development of the common law system and common law courts. In the next section we are going to look at some of the difficulties of the common law courts that gave rise to the development of equity. But before moving on some final thoughts:

*It is interesting to note that the assizes system established by Henry II lasted pretty much until 1971

The current circuit system still involves High Court judges from the Queens Bench Division travelling around the country on circuit to hear serious criminal cases*Another of Henrys innovations that has survived in one form or another is the jury. The history of the modern criminal jury can be traced back to an enactment of King Henry II in 1166. The royal edict provided that a jury of 12 good and lawful men from every township or village be periodically brought together for the purpose of informing the kings justices whether they knew or suspected any persons of having committed robbery, murder, theft, arson, forgery, harbouring a criminal and other crimes affecting their community. The crimes covered were expanded ten years later to include forgery and arson and over the course of succeeding years the group grew to include almost all serious crimes.

The criminal charges based on the jurys own knowledge of community affairs were in the form of non-technical written statements called presentments (Grand Jury). These were usually followed by the arrestees trial by ordeal. From this method of inquiry and presentment of people suspected of serious crimes grew the two stage process of indictment and trial that is the essence of modern common law criminal procedure. Ordeal prohibited by the Church in 1215 and after this the juries were used to decide guilt with direction on the law by the judge.We will look at the modern jury in more detail later.***

The ending of bloody feuds in England roughly coincided with the establishment of the Kings Courts in the 12th Century. The courts not only punished criminals but provided a peaceful means of resolving disputes over land and other property. The courts offered a service to the public. Instead of solving disputes by violence, a judge would rule on rights and wrongs and offer a remedy.

In the resolution of disputes over land, contracts debts, as well as dealing with criminal offences - the courts were supporting social order and the tranquillity of the state.Until C12th the vendetta was an integral part of English life*The courts underpin social order. Not just about punishing criminal acts but about peacefully resolving civil disputes.

The ability to resort to law is preferable to the ability to resort to violence. This is part of the critical social function of law.

In discussion about the need for access to justice some will argue that if citizens are denied access to the courts they will take the law into their own hands. Those concerns are the same as the concerns of Henry II some 800 years ago.Another reflection is on the effect that English Common Law has had around the world.

The common law tradition of England was transported around the world to places colonised by the British. So we can see that there are common law systems in Australia, USA, Canada and New Zealand all having connections with England which effectively transported its common law system to other parts of the world (common law family). Other countries have a mixed system but some elements of the common law for example parts of Africa, India, and parts of the Far East.

So the influence of English Common Law has been very great.

We will discuss later on some of the features of other legal systems, in particular Civil Law systems that are common in Europe, Africa, Asia and South America.

*Features of a common law system include:

PermissiveFlexible

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