Download UNIVERSITY OF TRIER International Legal Studies

UNIVERSITY OF TRIER
International Legal Studies
English Legal System
Helen Campbell, Lecturer
Session #1
Historic Background
During the Middle Ages, 3 systems of laws emerged in the West:
1. Common Law (aka “case law”)
--originated in England
--consists of law that arises from the authority of courts to define the law, even in the
absence of an underlying statute (criminal law, procedural law, contract law, torts were
developed in the courts)
--generally uncodified
--in common law nations, there may or may not be a constitution (e.g., the UK has no
single constitutional document. This is sometimes expressed by stating that it has an
uncodified or "unwritten" constitution. Much of the British constitution is embodied in
written documents, within statutes, court judgments, and treaties, as well as in unwritten
sources, such as parliamentary constitutional conventions and royal prerogatives)
--courts have the power to analyze and interpret law created by other bodies (e.g.
Constitution, legislative statutes, agency regulations)
--court decisions have the same force of law as statutes
--courts may make law where no legislative statute exists
--courts are adversarial
--extensive freedom of contract
--anything not specifically prohibited is legal
--in England common law system is more than 800 years old
2. Civil Law
--based on ancient Roman law as well as national legislation and custom
--originated in Europe during the Middle Ages, when the Roman codes were
“rediscoverd”
--codified—comprehensive, continuously updated legal codes that specify all matters
capable of being brought before a court
--courts lack authority to act in the absence of a statute
--role of judge is to establish the facts of the case and to apply the provisions of the
applicable code
--judicial precedent is given less interpretive weight
--decisions of legislators and scholarly literature is given more weight
--courts are inquisitorial
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--creation of courts specific to the underlying codes, e.g., a separate constitutional court,
administrative courts and civil court systems
--less freedom of contract
3. Canon Law
--law that governs the Catholic Church and its members
--derived from the decrees and rules made by the pope and ecclesiastical councils
England Before Common Law
--prior to the Norman Conquest of England in 1066, there was no unitary, national legal
system.
--government was decentralized
--a sheriff, a bishop and an ealdorman governed the shires, not the king
--the legal system involved a mass of oral customary rules which varied according to
region
--generally, courts consisted of informal public assemblies (“shire-moots”) that weighed
conflicting claims, and if unable to reach a decision, might require an accused to show
their guilt/innocence by carrying a red-hot iron, or snatching a stone from a cauldron of
boiling water
1066 – William the Conqueror and the Normans
--did not bring a unified system or laws, or intentionally develop the common law
--gained control of the shires by personally appointing the sheriffs
--removed the bishops from the administration of the shires
--established separate ecclesiastical courts
--supported the widespread use of trial by ordeal or battle
--confiscated nearly all the land; impoverished the Anglo-Saxons
--subjected vast tracts of forest land to “forest law”, protecting the royal hunt
--parceled out the land to his loyal followers—who then parceled out the land to their
followers—thus, birth of Feudalism
Feudalism
This institution was the foundation of the Common Law
--Defined: the system of political organization prevailing in Europe from the 9th to 15th
centuries. The basis was the relation of lord to vassal with all land held in fee and
characterized by homage (fealty) and military service of tenants (recall, this was a
money-less economy)
--relationship between a vassal and his lord was primary;
--the follower owed his lord protection during life and the avengement of his wrongful
death
--blood feuds
--chief concerns of feudalism were the law of war/transfer of real estate
--represented the beginnings of an entirely new social system, leading to the development
of common law
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Henry II (“Father of Common Law”) (reigned 1154-1189)
He institutionalized common law by creating a unified court system “common” to the
country and which derived ultimate authority from the king as follows:
--ended local control
--established secular tribunals
--developed the concept of the “King’s Peace” by which the monarch, as opposed to a
local lord, had the right to deal with any local disorder/crime
--eliminated arbitrary remedies
--introduced the practice of “inquiry” into the facts of any dispute
--reinstated a jury system of citizens sworn on oath to investigate criminal accusations
and civil claims
--curbed the power of the ecclesiastical courts (brought him into conflict with the Church,
and especially with Thomas Becket, the Archbishop of Canterbury, who was eventually
murdered)
--appointed judges of the realm (“Curia Regis”) to journey throughout the country and
bring the King’s justice to every citizen (goal was to create a common system of law
throughout the land. These judges had national jurisdiction and no local roots; known as
“circuit judges”). They decided cases on an “ad hoc” basis. Eventually, their decisions
were written down and published, leading to the system of precedents
--strengthened the body of criminal law to preserve public order and to raise money via
fines and forfeitures
--also imposed the concept of the “supremacy of the law” (i.e., even the King was not
above the law—nowadays, it applies to governmental agencies and ministers, who can be
challenged in the courts).
--launched the system of “yearbooks”, i.e., collections of common law court
cases/judicial opinions recorded and organized by year
--developed the “King’s Court” (“The Bench”) in Westminster. It was a stationary court
where citizens could come from all over the realm. It functioned independently of the
King’s personal presence)
--created additional courts due to the heavy workload: Court of the Exchequer (financial
matters), Court of Assize (criminal and civil matters), Court of Common Pleas
--because of the expense of traveling to Westminster, litigants hired representatives
(agents)—the first attorneys
Thus, by the time of the rediscovery of the Roman law in Europe (12th and 13th
centuries), the common law was sufficiently developed to prevent the inclusion of Roman
law
How Did a Case Commence in Court?
Writs
The plaintiff petitioned for a writ based on law and custom, issued by the court directing
the defendant to either do justice to the plaintiff or appear in court and answer the
accusations presented. In 1216, there were fifty categories of writs. By the early
fourteenth century, the number had grown to 890. The writ system gave rise to forms of
action, procedural devices used to give expression to the recognized theories of liability.
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The writ system was exceedingly formalistic and technical. The failure to select the
proper form of action or writ would result in the dismissal of the suit. The plaintiff also
had to elect the remedy being sought in advance and could not subsequently amend the
pleadings to conform to the evidence presented. The forms of actions were divided into
three categories as determined by the relief sought: real actions brought for the recovery
of real property (real estate); mixed actions brought to recover real property and damages
for injury to it; and personal actions brought to recover debts or personal property, or for
injuries to personal property or contractual rights… Juries were used by the court of law
to decide issues of fact, allowing the defendant to be tried by a court of her peers.
Other Unique English Legal Features
Courts of Law and Courts of Equity (parallel court systems; persisted until 1873)
--Courts of Law functioned through a system of writs (royal orders; a formal written
order from a judicial or administrative authority that directs a form of legal action), each
of which provided a specific remedy for a specific wrong. The system of writs because
so highly formalized, that the laws the courts could apply based on this system were too
rigid to adequately achieve justice
--Courts of Equity were thus established and were authorized to apply principles of
equity (“fairness”) based on many sources, including Roman law and natural law, to
achieve a just outcome (equity? Specific performance, doctrine of laches, promissory
estoppel, unclean hands)
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