HISTORY OF THE ENGLISH LEGAL SYSTEM

Sources of Law

At the beginning of this Unit, we discussed the difficulties in answering the question:
'What is law?' because there are different types of law. So far, we have made the
distinction between criminal and civil law. However, another way of answering the
same question is by identifying the sources of the law.

The law of England and Wales has evolved very gradually over many centuries, in a
number of different ways. These methods of developing law are usually referred to as
sources. Historically, local customs and judges' decisions had most influence, but
since the eighteenth century, Parliament has taken over this role. After 1973,
European law became increasingly important as yet another source of law, whilst in
more recent times, the European Convention on Human Rights ('ECHR') has come
into force.

At the time of updating this course both EU law and the relationship with the ECHR
are subject to change. Brexit will clearly have a profound impact on the relationship
between the UK and EU. The UK left the EU on 31 January 2020 and 2020 a
transitional period. Until the end of that transitional period UK courts will continue to
apply EU law. There is now a and the new relationship between the EU and UK.

To understand how and from where our laws have developed, it is useful to have an
insight into the history of the English legal system. Note that when we refer to
'English' case law, we actually mean the law of England and Wales although rather
unfairly, no reference is usually made to Wales. Scotland and Northern Ireland have
their own separate legal systems.

History of the English Legal System

This section is intended to give you an overview of the historical background to the
modern English legal system. The law as we know it today is the product of 1,000
years of history and some knowledge of this will assist you in your understanding of
the current system

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Customs

Although some legislation can be traced back as far as AD600, before the Norman
Conquest there was no single system of law common to the whole country. At that
time, England was a tribal country and instead, each region had different customs,
which were administered by local courts.

After William the Conqueror invaded England in 1066, he realised that it would be
easier to control the country if he also controlled the legal system. He imposed his
authority by travelling around the country accompanied by his court, listening to and
then ruling upon his subjects' grievances. The King would literally sit on a bench to
hear these cases. This is why the most important court became known as the Court
of King's Bench - the name which is still used today, although at present, it is
obviously the Queen's Bench.

Common or Case Law

Development of the Common Law

However, not all monarchs were interested in such work and so in the years following
the Norman invasion, this role was gradually delegated to commissioners, who were
known as 'itinerants', as they travelled around the country. Each county would be
visited three or four times a year and the justices (as they became known) could hold
'Assizes' or 'sittings', of the royal courts. The justices would hear and decide serious
crimes in the Assize Court of the county town, whilst the local sheriff (and later
justices of the peace) would deal with less serious offences. During the reign of
Henry II (1154- 1189), this system became more formal and the tours became more
regular as Henry divided up the country into 'circuits' or areas for the judges to visit.
For hundreds of years, the laws were enforced by this system of circuit judges from
the King's Bench and the Assizes were not actually abolished until 1971.

However, Henry may have regretted his significant contributions to the development
of the English legal system after he was accused of ordering the death of his
Archbishop of Canterbury, Thomas Becket. The murder of Becket in Canterbury
Cathedral by four of Henry's knights made the King very unpopular and, to avoid a
rebellion, Henry accepted the punishment of a public whipping - thus demonstrating
that even Kings are not above the law!

Initially, when the judges travelled the country, they would use local customs to
decide cases. However, over time, as the judges returned to Westminster and
discussed the cases they had considered, they began to use the best customary
rulings. These were applied universally, thus leading to the development of a law
'common' to the whole country. As time went by, the King's courts achieved
ascendancy over local courts.

Originally, there was no separation of the powers of the State in the way we are
familiar with today. The King exercised judicial as well as executive and legislative
powers. However, as the amount of judicial business increased, the common law
courts became separated from the other machinery of central government.

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Over time, the common law gradually emerged as a system because of the doctrine
of stare decisis (or standing by previous decisions). When a judge decided a new
problem in a case before him, that decision would be followed in subsequent cases
by judges as a legal rule. In time, judicial precedent became binding on the courts
rather than simply helpful guidance.

Problems with the Common Law

In order to bring an action in the King's courts, a person had to buy a writ from the
Chancellor's office. The writ was a sealed letter which was issued in the name of the
King and which ordered an individual such as the sheriff, the lord of the manor, or the
defendant, to do something. The basic principle was that a common law right only
existed if there was a procedure for enforcing it. An action could only be started in the
courts if there was already an appropriate writ in existence which covered the facts of
the case. An early example of 'bureaucracy gone mad' - no writ, no right! This meant
that although various writs developed over six centuries, the growth in the number of
writs, and therefore in the cases which could be brought at common law, was slow.

By the thirteenth century there were about 50 existing writs, but many of these were
minor factual variations of the basic ones. There was an attempt to mitigate the
problems caused by such restrictions, with the passing of the Statute of Westminster
in 1285, but this was of limited effect.

Even if a writ was available which met the facts of the case, so that an action could
be brought before the courts, the procedure was too inflexible and formal. The
plaintiff (today called the 'claimant') who brought the action could only plead one
cause of action and even a trivial error in a writ would lead to the collapse of a case
and the plaintiff would have to start all over again (with all the consequent expense
and delay).

A further problem with the common law lay in the remedies a successful plaintiff
could be awarded. Apart from actions for the recovery of land, the remedy granted to
a plaintiff for a civil wrong was damages or payment of a sum of money. The
payment of money in this way was not always an adequate remedy; for example, it
did not compel someone to cease wrongful actions or fulfil obligations. In addition,
the common law was also limited, because it recognised only certain rights.

For instance, it did not recognise the concept of a trust. There were particular
problems with mortgages: under the common law, once the date for repayment of a
loan had passed, the land became the property of the lender and the borrower was
unable to get the land back, even if the borrower could repay the outstanding loan. It
was not unknown for lenders to be deliberately absent, so that the money could not
be tendered in time for it to be counted by sunset on the repayment day. This meant
that the borrower lost the land.

Equity

Development of Equity

By the fourteenth century the common law had lost much of its flexibility, and, the
judges felt that they had to apply the law in the way their predecessors had done.

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Quite apart from abuses of the common law, expense and delay, the law itself was
narrow, rigid and dogged by technicalities. There was a growing number of
dissatisfied litigants, and the practice grew of petitioning the King direct to ask him to
exercise his royal prerogative as the 'fountain of justice'. At first, the King heard the
petitions; later, this function was delegated to the Lord Chancellor, the King's
principal minister, who became known as the 'Keeper of the King's Conscience'. By
1474, the Chancellor was issuing decrees in his own name and the Court of
Chancery was created, separate from the King and the common law courts.

The Court of Chancery developed the body of law we know as equity. Proceedings in
the Court of Chancery were started by a petition or bill filed by the plaintiff. There did
not have to be a writ and at first, cases were adjudicated simply on what the
Chancellor considered was fair. It was not that equity in the sense of natural justice
was totally absent from the common law system, but rigid rules of procedure often
prevented justice being done. The Chancellor could develop new rights and remedies
as individual cases demanded and justice could be quick and (relatively) cheap. The
Chancellor was not bound by the rigid procedures of the common law, but, for
instance, could inquire into the facts of a case, or order documents to be produced to
enforce legal rights.

Gradually, principles of equity emerged and eventually equity was to become a

separate branch of the law with its own rules and procedure, rather than simply being
the application of natural justice to a case.

Equitable Principles

Initially, there were few guidelines for the Chancellors to use, but as time passed, the
judges developed a set of equitable principles or maxims. These were applied by the
Court of Chancery and are still relevant today. Set out below are some examples:

• Equity looks on that as done which ought to be done: in other words, equity
will enforce the intention of the parties, rather than allowing something to
founder because of a failure to conform to rigid procedure.
• He who comes to equity must come with clean hands: accordingly, an
equitable remedy will not be granted to a claimant who has not acted fairly.
• Delay defeats equity: as a consequence, a claimant cannot wait too long
before making a claim as this may prejudice the other party.
• Equity will not suffer a wrong to be without a remedy.

Equitable Rights

Equity came to recognise new rights which were unknown to the common law. For
example, the law of trusts originated in the thirteenth century, in the arrangements
made by the crusaders for their land whilst they were away at the crusades. A
custom developed whereby such landowners would transfer their property to a
trusted friend, on the understanding it would be used for the crusader's family, if he
did not return. However, because the family did not have a legal interest in the
property, the common law courts would not remedy any abuses by the transferee.
The Court of Equity intervened to remedy this wrong.

The trust is still relevant today for individuals in ordering their private lives; for
instance, in taxation matters, in the shared ownership of property or in making
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provision for dependants. It is also important in matters of corporate or public
interest, such as pension funds and charities.

Equitable Remedies

As the King, and then the Chancellor, were petitioned for justice, new remedies were
developed which still exist. An equitable remedy is in the discretion of the court, and
this is why the equitable principles referred to above are used. By contrast, a
common law remedy is a matter of right: if a claimant proves his or her case at
common law, he or she is entitled to damages. Two of the equitable remedies which
are still important today are:

• An injunction which is an order of the court compelling a person to perform an

action or to refrain from an action, for example, to demolish a building which
has been erected in breach of a promise not to build on land.

• A decree of specific performance which is an order compelling someone to

perform their obligations under a contract or trust.

Conflict between Common Law and Equity

As equity began to develop into a system of rules, conflicts arose between it and the
common law. In some instances, equity did not merely supplement the common law,
but directly challenged it. In 1615, these disputes came to a head. In the Earl of
Oxford's Case (1615), James I decided that in cases of conflict, equity should prevail
over common law.

The Need for Reform

Equity was not without its disadvantages. These became apparent as equity
hardened into a system of law with rules which became as inflexible as those of the
common law. By the nineteenth century, there was an urgent need for reform of the
whole legal system. There were too many courts with overlapping jurisdictions, it was
expensive and slow to obtain justice and there was an inadequate appeals system.

The Fusion of the Administration of Law and Equity

The Supreme Court of Judicature Acts of 1873 and 1875 created a single court
structure and merged the separate court systems of equity and the common law. For
the first time, court procedure as a whole became regulated by the rules of the
Supreme Court rather than being left to individual courts.

As a consequence, all the civil courts can now grant both common law and equitable
remedies in the same action. For example, an injunction to stop continuing unlawful
behaviour can be ordered, in addition to damages for losses accrued to date.

Common Law Today

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We have considered the development of English law and the different meanings
which have been attributed to the phrase 'common law'. These are summarised in
the diagram below. The only distinction which you have not yet covered is in relation
to civil law, in the sense that some other jurisdictions do not develop a binding body
of case law. This is discussed below.

A civil law system is the generic description given to those legal systems which are
based on Roman law in direct contrast to common law systems, which, are based on
case law. Broadly speaking most of the Member States of the European Union have
a civil law system whereas most Commonwealth countries have a common law
system.

The defining feature of a civil law system is that it is based on a written code such as
the 'Code Napoleon' in France and the role of the judiciary is essentially to apply the
code.

By contrast, in common law systems, although statute is an important source of law,

it is by no means the only source of law and there is no all-encompassing code.
The meaning which has most relevance today is that which distinguishes the law
made by judges (case law) with that passed by Parliament. Case law is one of the
main sources of English law today, in addition to legislation and European Union law.
When we refer to case law, what we mean are the decisions in actual cases which
have been considered by the courts. These cases are summarised by specialist
journalists called court reporters in journals known as law reports.

Activity - Case Law

Click on the link to find the law report of Crossley v Rawlinson [1982] 1 WLR 369.

You will consider this case in more detail in Unit 5, but in the meantime, all you are
required to do is to satisfy yourself that the case is both a summary and explanation
of the decision of the court in that particular case. To assist you in this, please
answer the questions set out below.

Activity available online

Activity - Common Law in Context

So far we have seen that the term 'common law' is used in various senses.
One way of reviewing this is to consider the terms with which we have contrasted it.

Activity available online

Activity - Should Judges Make Law?

(allow 10 minutes)
You will be aware from your understanding of the English legal system, that in days
gone by, judges did make law.

However, in theory, judges no longer do so, although you may reconsider this later in
the course. In other words, law should not originate from judges, but from Parliament.

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Despite this, case law remains a major source of law because much of modern
English law has never been put into statutory form and is still to be found in cases,
some of which were decided many years ago.
In addition, judges retain their role of interpreting legislation and the meanings
attributed to that legislation become part of the law (see Unit 4 on Statutory
Interpretation).

Accordingly, although the judges' role as law-makers has now diminished, they do
retain an influence over certain developments of the law. This activity is designed to
test your ability to think around this concept.

Activity available online

Legislation

The most important source of English law is now legislation. The monarch, and then
Parliament, has passed laws since before Norman times; indeed the oldest statute
still in force is The Statute of Marlborough 1267!

In recent times, the amount of legislation has increased significantly. In 1911,

Parliament passed 760 pages of legislation according to statistics from the House of
Commons Library. However, in 2006, 14,580 pages were added to the statute
books.

These statutes range in severity from the Nuclear Explosions (Prohibition and
Inspections) Act 1998, which makes it an offence to cause a nuclear explosion...

...to the Clean Neighbourhoods and Environment Act 2005, which introduces on-the-
spot fines of GBP 110 for people who put rubbish out on the wrong day.

The world has indeed changed significantly from the times of the Icelandic law-
making process, 1,000 years ago, when a wise man, known as the Lawspeaker, was
required to memorise all laws when deciding disputes!

Statute has always been supreme over case law- that is: statute can amend case
law, but not vice versa. This is part of the modern doctrine of Parliamentary
Supremacy.

Unlike case law, which only applies to England and Wales, in the absence of specific
provisions to the contrary, statutes apply to England, Wales, Scotland and Northern
Ireland (the United Kingdom). 'Legislation' is often used as a synonym for 'statute'.
However, strictly speaking, a statute is an Act of Parliament, whereas 'legislation' is a
generic term which includes other types of legislation such as delegated legislation
and EU legislation (before the UK left the EU).

The functions of legislation are making, changing and repealing the law, but before
we consider these further we will consider how legislation is made. We will look in
more detail at legislation elsewhere in this Unit.

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