Common law system

Concept, development and

sources of common law
 System
• a set of organs or structures in the body that have a perticular purpose.
(Cambridge Dictionary)
• an organized set of doctrines, ideas, or principles usually intended to explain
the arrangement or working of a systematic whole. (Merriam-Webster)
 Legal System
• Legal System is a system of rules that governs the social behavior
of a particular society.
• Legal System is the system of laws. (Lex – Legum). "A particular law
or a legal provision is not a legal system. Legal System is an
integrative sub-system, which interacts with other sub system "–
Joseph Raz.
• Legal System is a process whose input is law and output is justice.
• System of 1) Rule Making, 2) Executing and 3) Adjudication.
[Parliament, Ministries, Court, Law, Police, Jail, Legal Profession,
Legal Education]
• Criteria of legal system : 1) Existence, 2) Identitiy, 3) Structure and
4)Content – Joseph Raz
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• System of 1) Soverign, 2) Command and 3) Sanction. – Austin
• Hierarchy of norms : 1)Grundnorm (Basic norms-Constitution), 2) Statutory
norms, 3) Delegated norms, and 4) Individual norms – Hans Kelson
• Union of Primary and Secondary rules: 1) Primary (Duty imposing) and 2)
Secondary (Power confering) rules. 3 defects of primary rules (1)
Uncertainity – Rule of Recognition, (2) Static – Rule of Change and (3)
Inefficiency – Rule of adjudication. – HLA Hart
• Balance of conflicting interests_Social engineering. 3 interests 1)Private,
2)Social and 3) Public – Rosco Pound.
• Legal System has two criteria – 1)Ideological and 2) Technical [Theory and
Practice] – René David.
• Every school of jurishprudence should be considered to understand law and
legal system.
 Concept of common law system
• The law common to all is common law. The common law is known as
English law because it was developed through a long practice of English
courts.
• Common law is generally uncodified. This means that there is no
comprehensive compilation of legal rules and statutes.
• "The body of law derived from judicial decisions, rather than from statutes
or constitutions." Black's Law Dictionary
• Two main parts of the Law - Lex non scripta, the unwritten or common law
and lex scripta, the written or statute law. – Justice William Blackstone
(Commentaries on the laws of England)
• The perfection of reason – Justice Edward Coke
• Laws have been being "common" to the entire English realm. The
foundation of English common law is "legal precedent" - referred to
as stare decisis, meaning "to stand by the decision." or "Let the decision
stand"
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Different meanings
Law developed by judges in the eleventh
and twelfth centuries to form a ‘common’
law for the whole country
Judge- made law developed through
Jacqueline Martin
judicial precedent {Stare decisis}
The law operated in the common law
courts before the reorganization of the
court structure in 1873–75
Common law systems – those following
the English case- based system (mainly US
and Commonwealth countries)
Distinguishes it from
The local laws used prior to the
Norman conquest
Laws made by a legislative body such
as Acts of Parliament (statutory law)
Equity – decisions of the Chancery
courts
Civil law systems – those operated in
European countries influenced by
Roman law and which are largely code-
based
Spread of Common Law
 Development of Common Law
Four principal periods in the history of English law
1. Anglo-Saxon Period (Up to 1066):
Before the Norman Conquest 1066 AD.
Law was unwritten tribal custom of several Roman and German tribes.
The laws of Aethelbert (Ethelbert) King of Kent in 7th Century AD,
comprise only 90 brief sentences.
In 11th Century, Danish King Canute developed laws and suggest a
transition from the tribal era to the feudal period.
King's Court was founded supported by Council of witan (wise men).
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2. Formation of Common Law (1066-1485) :
• Norman Conquest 1066.
• William the Conqueror established a strong centralized administrative (Feudal formation) realm which later
extended the Common Law's development.
• He established Ecclestiastical Court which adjudicated according to Canon Law (equal to all Christians). It
helped to develop Common Law.
• Two adviser councils for King's bench:
1. Magnum Councilium (Great Council) – Adviser for state policy, administration, law making and and
administration of Justice – Parliament.
2. Curia Regis (Little Council) – Adviser for day to day work – Royal Court of Justice (Court of Westminster)
- Privy Council
• King Henry II (1154-1189) : known as the founder of the common law. His courts (King's Court):
1. Court of Common Pleas – land dispute.
2. Court of King's Bench – Appealate for Criminal case and Civil Case on royal concern.
• Public could present the petition to the King. It developed the Writ from King's Veto to Extra ordinary
jurisdiction of the court.
• Magna Carta 1215 : Historical document for Rule of Law and Judicial freedom
• Statute of Westminster II (1225) determined the Jurisdiction of Common Law Court. Practically the
procedure and precedents were also adopted as law.
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3. Growth of Equity (1485-1832) :
• Common law had developed in strict compliance with formalist
procedures, faced two challenges 1) Conservatism 2) Equity {Justice
by Royal Prerogative}
• From 1485 Tudor Dynasty started by Henry Tudor (King Henry VII),
who revived Privy Council as the Prerogative Court.
• King's court delegated the power to Lord Chanceller and gradually
established Chancery Court which filed writs {Injunction} and
rendered Equity.
• There was compromise between the common law (allied by the
Parliament) and the equity. The common law absorbed the equity.
Law reporters began to publish by this period.
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4. Modern Period (1832- to the present) :
• Chancery Sinecures Act 1832 – Abolished a numbers of sinecure offices.
• Court of Chancery Act 1842 - Abolished all clerks
• Master in Chancery Abolition Act 1852 – Abolished the masters in
Chancery.
• The Supreme Court of Judicature Act 1873-1875 - reorganised the English
court system to establish the High Court and the Court of Appeal. All
English courts became empowered to apply the rules of common law as
well as those of equity.
• Common Law cosidered the concept of written law, codified law and Civil
Law structures. The Common law established special tribunal, court for the
special purpose or for the fulfillment of necessity to solve special dispute.
• The Constitution Reform Act 2005 - It authorized to establish the Supreme
Court which take over the previous appellate jurisdiction of the Law
Lords and Privy Council. It removed the functions of Speaker of the House
of Lords and Head of the Judiciary of England and Wales from the office
of Lord Chancellor.
Sources of Common Law
1. Primary Sources:
A. Judicial decisions (Precedents)–
Ratio Decidendi = Rational behind the decision- case fact-binding Obiter
Dicta = aside opinion – case principles - nonbinding
Stare Decisis = Stand by the decision- To inferior courts
B. Legislation (Legis = law + Latio = bearing, bringing)
Sovereign Legislation = Constitution – Parliamentary Act(Statute) -
Ordinance
Delegated Legislation = Colonial(Redelegated laws), Executive(Rules,
Directions, Orders), Judicial (Rules),
Autonomous(By-laws), Municipal (Rules, By-
laws)
2. Secondary Source :
Customs (General and particular),
Reason(Justice+Good Conscience+Equity),
Juristic Writings and Thought, international law(Treaty)-Institutes of the Lawes of
England: Edward Coke, Commentries on the Laws of England: William Blackstone.
Thank You