Distinction between Common Law and statute law (written law) :
It means that part of law which is contained in the decision of the court. Indeed, in England and Wales law isn’t only passed by Parliament. But law can also develop from the previous decisions of courts. This is the reason why precedent which will explain later is so important in the Common Law system. Why do we use this Common Law to describe the body of law from the decision? We have to go back in the history to understand this meaning.
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system
English history, before the Normand invasion: the administration of justice was entirely left to local courts and the law applied by these local courts was customary and so different from one right of the other in the country. The law of the court was a law practiced in the local courts. This situation has changed with the Normand conquest. Guillaume the Conquer invaded England in 1066. The invasion changed a lot of things in the legal system. The Normand set up royal courts composed of judges appointed by the king. New courts, royal court have been created and deformed curia Regis. This court will sit in Westminster. So for the first time courts depending on the king are established in England. This court sit only in Westminster and many people couldn’t afford with the money to travel and go to Westminster whenever they needed to recourse the justice. The second did was to create itinerant royal justices that means a system of judges who travelled around the country to give justice. These judges were appointed by the king. We can say that since people couldn’t go to Westminster but Westminster comes to the people. These itinerant judges become quickly very popular. In the meantime, there are still local courts functioning. But the people preferred to go before the royal justices instead near the local courses. The royal courts were much more attractive to citizens and this court progressively divided all the places for the local courts. Why did they trust more the royal court than the local courts?
First argument is that because they were at royal court a very strong monarchy and the strength of the king who have established this first court was considered a guaranty of this efficiency of the royal courts decisions. The local courts didn’t depend on the king.
The second argument is that maybe this court is more important that the local courts. Civility nation was about land possessions. It was the only way of becoming… civility nation was meanly… the judges in royal courts didn’t know the citizens; they didn’t live in the same area and come from Westminster. That gave a guaranty from equality. Representation of the king has no relationship with the citizens.
The procedure followed by this court appeared more serious than the followed of the local courts.
They didn’t want to impose the royal court but the succeed convinced the people to follow this court.
Main characteristics of the royal court: this courts are centralized, different kind of courts are in Westminster. The judicial power was a king’s monopoly. At that time no separation of powers existed. The king is the source of justice. The idea of justice is a prerogative of the crown, the king. It was recognized that peace is an essential element for collecting taxes and other fees. If there is a war then the lords have to pay for the battle. The king can raise money to keep peace. He offers a system of justice to keep peace in the country. The king had to secured peace and so justice. But of course this was hard for just one man. The king started to delegate his power to others persons, this persons being the royal judges. This is certainly to keep a certain control of these judges but the courts were only in Westminster. If all the judges remain in the same city it perms the king to have a certain control on their activities, the control is done more easily.
The administration of justice in England even today is very centralized. There’s only one first instance court in England which is the high court in London. The centralized system is still alive today. Of course, the centralization has been newest. This itinerary of justice has been taken in the USA. The federal courts are divided in 11 circuits. The judges travel. This idea of judges travelling is an idea which is applied in USA too.
The second factor which we enforce the centralization of the central courts is that they have few judges. The first reason for having only a few judges is that the Common Law system was very limited. That means that huge members of actions wereabounding to fail because there isn’t fit to recognize form of action. If a lot of actions will fail anyway there was such a need to judges. Formal action, specific form of action.
A big part of the work was left to the jury. The jury has to decide all the matters of fact in a trial. The legal work only for the judges, the fact has been determined by the jury. Determining the fact of a claim is sometimes a very bottom work. We didn’t need so many judges to have the actions decided.
The jury was used for the trials. It was thought at that time that it was better to have a jury. People living in the same area where the disputes abode. They have a personal knowledge of the facts. In France a judge has no power to use personal knowledge to decide the case, it’s prohibited.
There was a specific amend of money to pay. This amend was high. They can’t bring an action before the courts. There are still very few judges in England, the judicial function in England will main very prestigious. The social position and the prestige isn’t the same in both countries. There are so few judges in England that each be considered that having a big power, judges can have an influence on the law.
The idea of having a centralized system was good for the king to control it but also was good because the judges worked at the same place, they knew each other very well and they could speak together about the cases they have to decide. The fact that they know each other gave uniformity to the decisions and this is how a Common Law has been created. It was a Common law because the judges could discuss and achieve the same result whenever the same case arose. Nevertheless there was judges didn’t create the Common Law out of nothing. They just didn’t imagine the best solution out of nowhere. They were inspired by the customary laws that were in force before in England. So they use customary law as a source of inspiration. Inspiration because they didn’t feel bound by it. They could depart from customary laws whenever they founded to be appropriate. Another influence of developing of Common Law is canon law. Because a number of judges were church men, probably because they were the only ones who can read and write.
Of course, they were also probably influence by Normand law as most of them they were closely related to the king and therefore often of Normand origin. The role of judges managed to set up a fairly system that finally prevailed other customs and so created a body of law which will be common to the all kingdom. This was impossible through these royal judges. Common Law today is considered as being characteristic of the British identity. But in fact, this identity was born of a body of law by French jurist. The judges of the king having a Normand origin. It’s a French origin. Roots of the Common Law are from the French culture.
It continues to be a significantamends of law that exists without a statutory definition. Even today there is a huge part of English law which come from the Common Law. Murder was defined in the 18th century on the Common Law. Even if the punishment today is statutory law, the origin is from the Common Law. This body of law is still important.
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