QUESTION: Discuss the major constitutional developments that took place in England with

the conquest of England by William of Normandy and explain how they have influenced the
development of the legal system in Zambia.

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INTRODUCTION

The year 1066 was a watershed date in the history of Common law. Before 1066, there
existed a primitive legal system based on local customs. During the 1066 era, William, the
Duke of Normandy conquered England. This assignment seeks to explain on some of the
constitutional developments that arose as a result of the conquest of England by William of
Normandy. In doing so. It will give a brief historical background of the common law.
Furthermore, we will also explain on how the constitutional developments, brought about by
William of Normandy, have influenced the development of the legal system in Zambia.

What is a Legal System?

The legal system refers to the content and nature of law generally, and the structures and
method whereby is legislated upon, adjudicated upon and administered within a given
Jurisdiction. It can also be said to be a set of operating legal institutions, rules and
procedures. There are several types of legal systems in this world, namely; Islamic law,
common law, French law, customary law etc. However, we will only focus on the English
common law. Zambia has a dual legal system. It has customary law (which is the oldest form
of law that is known to man in all parts of the world) as well as English common law (this
simply means that it has a legal system that is based on that of the British Empire) but is
largely based on the latter legal system.

History of the Common Law

This is a legal tradition that was brought about and evolved in England from 11 th century till
onwards. It can be said to be a part of the law that was formulated in England, developed and
administered by the royal courts during the first three centuries after the Norman Conquest of
10661, based originally on the common customs of the country and unwritten. This type of
law is found in most countries that were once colonies of the British Empire. It is considered
to be one of the most important sources of England’s constitution. In Zambia, the Common
law has been established under Section 2 of the English Law (Extent of Application) Act2.

This was considered to be a very important event in the history of England. The Norman
Conquest was the occupation and invasion of England by the French, Breton and Norman
army under the rule of Duke William of Normandy. This happened in 1066. They defeated
Harold II of England at the Battle of Hastings.
1
ibid
2
Chapter 11 The English Law (Extent of Application) Act

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 Before the Norman Conquest, they was no unified legal system in England and the Wales.
What governed it were customs and conventions. William the conqueror sort to unify the
legal system and establish a centralized type of government. The administration, royal
revenues and the common law applicable to the whole England was introduced thereby
discarding the customary laws that existed before the Normans 3. The Normans, however,
never got rid of the customs the customs that existed but enclosed into what we now know as
the common law4. The effect of the Norman Conquest was to set in motion the unification of
these local customs into one system of law with the King as the head. The system was
common to all men and for this purpose it was called “Common law”. This indicates that
King William would go round the country together with his itinerant judges to hear disputes
throughout the land based on local custom., through the “Curia Regis” . He unified the legal
system by moving around the country with his justices and moving courts in order to hear and
administer justice to settle disputes among the locals. These courts were referred to as Curia
Regis or Kings Courts which had legislative, administrative and judicial functions. William of
Normandy and his justices chose laws and customs from all around the country and begun to
apply them. This was the formulation or the origin of the common law 5. The system was
common to all men as such it was referred to as “Common law”. The Common law that were
developed, by William of Normandy, comprised of:

Stationary Courts

Before the establishment of the common law, there were mobile courts. Mobile courts can be
defined as formal courts which conduct proceedings in different locations other that there
usual offices and are usually established in areas that are remote which have no justice
services6. These are courts that have no stipulated location. Henceforth, William and his
justices would move from place to place in small units. However, after the Norman Conquest,
William established stationary courts. William of Normandy strengthened the justice
administration in the new lands by occasionally appointing justiciary to preside over some
local cases7.

Judicial precedents

3
Besa, M. (2011), Constitution, Governance and Democracy. Ndola: Mission Press.1 p.36
4
Ibid p.36
5
Douglas, D.C. (), William the Conqueror, New Haven: Yale University Press
6
Rispo, M., (May 2014), Evaluation of UNDP’s support to Mobile Courts.
7
http://www.britannica.com/place/United-Kingdom/The-Normans-1066-1154

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Judicial decision making plays a very important role in the development and refinement of
the law. Some parts of common law that was derived from the Norman Conquest is that of
judicial precedents. A precedent can be defined as a judgment or decision of a court,
normally recorded in a law report, used as an authority for reaching the same decision in
subsequent cases8. A Judicial precedent can be defined as a decision of a court of law cited as
an authority for deciding a similar set of facts or as a case which serves as an authority for the
legal principle embodied in its decision. This doctrine ensures that decisions of a case should
be based on a decided case with similar facts and ratio decidendi. This is called Stare decisis
which is a Latin phrase that means ‘stand by the decision’. For example when dealing with a
case the concerns the bearing the burden of proof, one can use the case of Woolmington v
DPP in order to justify the ratio decidendi. Munalula has stated that “what is regarded as a
precedent and therefore to be followed is the ratio decidendi of a case or the rule upon which
the decision is founded”9. However, it is the decision of the highest courts of the land (the
high court, Court of appeal and the Supreme Court) that have the binding effect on cases that
might happen in the future. Besa has stated that courts are not obliged to depart from already
existing decisions unless they are encountered with a novel factual situation10.

Even though this is so, this system of law had been constituted of a few defects. Among them
were the court procedures. Even the most trivial matter in the writ would avoid the action in
the courts. Not only that but cases would not be based on merits but on a wager of law. For
instance, if a person had more witnesses, they had more chances of winning than a person
who had less witnesses. Furthermore, there were certain defences which could be pleaded
under the common law and could delay the plaintiff’s case. For example, one could claim that
he is sick and this would delay the case for a year or so. The defendant would also say that he
was cut by the floods or a broken bridge. Earlier, such defences were verified by sending
Knights to see the defendant but later this was not done and these defenses were used to delay
good claims. There were also complaints of bribery, corruption and oppression by judges.
Even though this was so, equity came to breaks and release the harshness of such factors.

The Common Law’s Influence on the Zambian Legal System.

Zambia, being one of the colonies of the British Empire, has adopted the English common
law. The Common law, as formulated by William of Normandy, has influenced Zambia’s

8
Supranote 2 p.374
9
Munalula, M.M(2004), Legal Process: Cases Statutes Material (Revised Edition), Lusaka: Unza press p.210
10
Supranote 1

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Legal system in how judicial decisions are made. The doctrine of judicial precedents has been
used in many cases. With respect to the principle of stare decisis, many leading cases from
the common law have been used in order to reach certain decisions. An example of such is
seen in the case of Michael Sata v Zambian Bottlers11, the case of Donoghue v Stevenson12
was used in order to make a decision that was similar to that of the latter case.

Furthermore, it has made and influence in statutes. This has been established under the
English Law (Extent of Application) Act which has stated that the common law, the doctrine
of equity and statutes that came into force in England from 1911, shall, as well, be in force in
Zambia. Not only that but also the British Act extension Act Chapter 10 of the Laws of
Zambia13 and section 12(1) of the High court Act14. Henceforth, Zambian courts and lawyers
can refer to English law if there are lacunas in Zambian law. This was seen in the case of The
People v Shamwana and Others15. The accused were charged with treason. Among the issues
that were raised was whether the law applicable to the offence was by virtue of the English
law (Extent of Application), the English Treason Act of 1795. The High Court ruled that, ‘the
English law(Extent of Application) Act, Cap 4 is an Enabling Act in that in the absence of
any legislation in Zambia on any subject, English statutes passed before 17thAugust will
apply. Where Zambia enacts an Act with similar provisions to an English Act, the Zambian
Act is used and not the English Act. The law applicable therefore is the Zambian Act No. 35
of 1973.’ The accused were, thus, convicted accordingly.

11
Michael Chilufya v Zambian Bottlers Limited
12
Donoghue v Stevenson [1932] A.C. 562.
13
The British Act Extension Act Chapter 10 of the Laws of Zambia
14
Section 12(1) All statutes of the parliament of the United Kingdom applied to Zambia shall be in force so far
as the limits of the local jurisdiction and local circumstances permit.
15
(1982) ZR

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Conclusion

All in one, Common law can be said to be a body of unwritten laws which is part of the
English law that was made from judicial precedents and customs as formulated by King
William II of Normandy. Before the Norman Conquest, there existed, in England, a legal
system based on local customs that was regarded to be primitive. However William the
conqueror. The effect that was brought about after the Norman Conquest was the unification
of these local customs into one system of law with the King as the Executive. Since Zambia
is a former Colony of the British Empire, most of her law is based on English common law. It
has influenced Zambia’s Legal System through Judicial decision making as well as statutes.

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BIBLIOGRAPHY
Besa, M. (2011), Constitution, Governance and Democracy. Ndola: Mission Press.
Douglas, D.C. (1999), William the Conqueror, New Haven: Yale University Press
Martin, A.E. and Law, J. (Eds.). (2006), Oxford Dictionary of Law (5th Ed.). Oxford. Oxford
University Press.
Munalula, M.M (2004), Legal Process: Cases Statutes Material (Revised Edition), Lusaka:
Unza
Rispo, M., (May 2014), Evaluation of UNDP’s support to Mobile Courts.
Cases
Shamwana and 7 others v the People
Donoghue v Stevenson
Micheal Sata v Zambian Bottlers Limited
Statutes
Chapter 11 the English Law (Extent of Application) Act
The British Act extension Act Chapter 10 of the Laws of Zambia
Chapter 27 The High Court Act
Internet Sources