Common Law and Equity
๐ Source: CIE Law Tutor
ORIGINS OF COMMON LAW
Customs are rules of behaviour, which develop in a community without being deliberately invented, and of two main types: general customs and local customs.
A brief introduction of how the Norman Conquest and the formation of common law is linked:
โช๏ธWilliam the Conqueror, also known as William the Bastard from Normandy (France), fought with King Harold (the last pure English king) and won the Battle of Hastings.
โช๏ธWilliam claimed all land of England as his โ he applied feudalism by distributing land to nobles.
โช๏ธThe Norman kings realised that control of the country would be easier if they controlled, among other things, the legal system.
โช๏ธThe first Norman king, William the Conqueror, set up the Curia Regis (the Kingโs Court) and appointed his own judges.
โช๏ธThe nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.
โช๏ธThe king sent his itinerant justices to go around the country to collect taxes and adjudicate (to judge) disputes.
โช๏ธIn the time of Henry II (1154-89), these tours became more regular and Henry divided up the country into โcircuitsโ or areas for the judges to visit.
โช๏ธThen, the itinerant judges chose the best customs among the other differing customs of different towns to form common law โ which was applied uniformly throughout the country.
DEFINITIONS OF COMMON LAW
Common law is the basis of our law today: it is unwritten law that developed from customs and judicial decisions. Some countries like French or Germany use civil law system. But the common law has been used since the ancient times in England.
Common law is based on principle of โstare decicisโ.
๐กWilliam Black Stone wrote: โCommon law was found in the records of courts of courts of justices in book of reports in judicial decisions and handed down to from the ancient time. Common law met the needs of people once, but found inefficient because it did not change along with the progress of the society.โ
Judicial decisions are forms of legal decisions given by a judge or panel during a legal dispute.
Statute is a written law passed by a legislative body, normally referring to the Parliament.
E.g. murder and theft:
โช๏ธMurder is a common law crime, which it is not written in any Act of Parliament, or statutes. However it is considered as illegal due to the fact that it is an unwritten law that developed from customs and judicial decisions.
โช๏ธTheft is a statutory crime, since it is defined by a parliamentary statute, Theft Act 1968.
Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the Kingโs Courts) and the rules of equity, which were developed, by the Lord Chancellor and the Chancery courts.
๐กDEFECTS OF COMMON LAW
1. Writ system
The Lord Chancellor โ known as the chancery, started all actions in the common law via the issuing of writs. Each wrong was assigned a writ. The wrong must fit the writ available in order to have a successful application. If the wrong did not fit the writ, an action will not be started.
2. Provisions of Oxford 1258
Common law court judges are inhibited from creating a new writ according to this statutory law. So many wrongs suffered without remedies.
3. Monetary payment only
Common law only provides monetary compensation. In some cases this would not be the best method of putting matters right between the parties. E.g. trespass to land: In a case of trespass to land, where perhaps the defendanthad built on his neighbourโs land, the building would still be there and the plaintiff would have lost the use of that part of his land. In such cases, the plaintiff would probably prefer to have the building removed, rather than be given money in compensation.
4. Look at the form instead of intention
Common law only looks at the form (contract details etc.) but the intention behind the crime or case.
5. Corruption and intimidation of juries
Juries can be intimidated or bribed to support a certain judgment.
Page 1 of 5๐Cont below
๐ Source: CIE Law Tutor
ORIGINS OF COMMON LAW
Customs are rules of behaviour, which develop in a community without being deliberately invented, and of two main types: general customs and local customs.
A brief introduction of how the Norman Conquest and the formation of common law is linked:
โช๏ธWilliam the Conqueror, also known as William the Bastard from Normandy (France), fought with King Harold (the last pure English king) and won the Battle of Hastings.
โช๏ธWilliam claimed all land of England as his โ he applied feudalism by distributing land to nobles.
โช๏ธThe Norman kings realised that control of the country would be easier if they controlled, among other things, the legal system.
โช๏ธThe first Norman king, William the Conqueror, set up the Curia Regis (the Kingโs Court) and appointed his own judges.
โช๏ธThe nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.
โช๏ธThe king sent his itinerant justices to go around the country to collect taxes and adjudicate (to judge) disputes.
โช๏ธIn the time of Henry II (1154-89), these tours became more regular and Henry divided up the country into โcircuitsโ or areas for the judges to visit.
โช๏ธThen, the itinerant judges chose the best customs among the other differing customs of different towns to form common law โ which was applied uniformly throughout the country.
DEFINITIONS OF COMMON LAW
Common law is the basis of our law today: it is unwritten law that developed from customs and judicial decisions. Some countries like French or Germany use civil law system. But the common law has been used since the ancient times in England.
Common law is based on principle of โstare decicisโ.
๐กWilliam Black Stone wrote: โCommon law was found in the records of courts of courts of justices in book of reports in judicial decisions and handed down to from the ancient time. Common law met the needs of people once, but found inefficient because it did not change along with the progress of the society.โ
Judicial decisions are forms of legal decisions given by a judge or panel during a legal dispute.
Statute is a written law passed by a legislative body, normally referring to the Parliament.
E.g. murder and theft:
โช๏ธMurder is a common law crime, which it is not written in any Act of Parliament, or statutes. However it is considered as illegal due to the fact that it is an unwritten law that developed from customs and judicial decisions.
โช๏ธTheft is a statutory crime, since it is defined by a parliamentary statute, Theft Act 1968.
Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the Kingโs Courts) and the rules of equity, which were developed, by the Lord Chancellor and the Chancery courts.
๐กDEFECTS OF COMMON LAW
1. Writ system
The Lord Chancellor โ known as the chancery, started all actions in the common law via the issuing of writs. Each wrong was assigned a writ. The wrong must fit the writ available in order to have a successful application. If the wrong did not fit the writ, an action will not be started.
2. Provisions of Oxford 1258
Common law court judges are inhibited from creating a new writ according to this statutory law. So many wrongs suffered without remedies.
3. Monetary payment only
Common law only provides monetary compensation. In some cases this would not be the best method of putting matters right between the parties. E.g. trespass to land: In a case of trespass to land, where perhaps the defendanthad built on his neighbourโs land, the building would still be there and the plaintiff would have lost the use of that part of his land. In such cases, the plaintiff would probably prefer to have the building removed, rather than be given money in compensation.
4. Look at the form instead of intention
Common law only looks at the form (contract details etc.) but the intention behind the crime or case.
5. Corruption and intimidation of juries
Juries can be intimidated or bribed to support a certain judgment.
Page 1 of 5๐Cont below