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Chapter-4 Common law Tradition In legal System of the world

Contents
Introduction.......................................................................... 2
Characteristics of Common law. .......................................... 2
Sources of English Common Law........................................ 3
Historical Development of Common law ............................. 5
Judiciary in common law ..................................................... 7

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1. Introduction

Common law refers to the ancient law of England, based upon, societal customs,
recognized and enforced by the judgments and decrees of the courts. Common law is generally
uncodified based on legal precedent. These precedents are maintained over time through the
records of the courts as well as historically documented in collections of case law known as
yearbooks and reports.

2. Definition

According to Oxford Dictionary language

The part of English law that is derived from customs and judicial precedents rather
than statutes.

Merriam Webster

The body of law developed in England primarily from judicial decisions based on customs
and precedents, unwritten, and constituting the basis of the English legal system.

3. Characteristics of Common law.

• There is not always a written constitution or codified laws.

• Judicial decisions are binding
• Less Freedom of Contract- Fewer provisions are implied into the contract by law.
• Common law is based on precedents.
• Common law applies to all persons including the state.
• Adoption of inductive form of legal reasoning whereby legal principles are derived
from the text of many single judgments.
• A litigation system in which trial is distinct and separate climax to the litigation
process.
• The parties to the dispute essentially control proceeding and that there is an
emphasis on the presentation of oral arguments by council.
• The expense and effort of determination of the dispute through litigation falls
largely on the parties.

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Sources of English Common Law

Sources of common law are an important legal aspect of the English legal system, and
its significance varies from different areas of law and from different periods of history. For
example, prior to the Norman Conquest of England in 1606 in the Anglo-Saxon period there
was little interference of the Crown and there existed customary law. Hundreds of years later,
there had been a great change in Common law and it derived its dominant source and developed
its authority from the case law and precedents. Legislation became more significant in the
twentieth century and so a trend has been increased to the European Communities by the
accession of the United Kingdom. The sources of Common Law are given as under

I. Customs

Custom is the oldest and important source of Common law. According to Holland,
Custom is the course of conduct that is commonly observed. It exists as established usage; it is
nothing but usage and habits. Custom means uniformity of conduct of people which is followed
by any part of community or whole community. It can be described as the cultural idea that
defines the regular pattern or behavior, which is considered a characteristic of the judgment of
right and wrong as the idea of justice and public utilities

II. Judicial Decision-Case Law

The judgments passed by some of the learned jurists is another significant source of
common law. Precedent means, the judgment or decision of the court cited as a right of implied
legal principle or past judicial decisions. When there is no legislature on particular point which
arises in changing conditions, the judges depend on their own sense of right and wrong and
decide the disputes. Such decisions become authority or guide for subsequent cases of a similar
nature and they are called precedents. Precedent is more flexible than legislation and custom.
It is always ready to be, used. Precedent is otherwise called case law judicial decision judge
made law it is the sources of law. It enjoyed a high authority precedent plays a vital role when
law is unwritten English common law is based on precedent.

III. Roman law

The legal institutions developed by the Roman had influence on the laws of other people
in times longer after the disappearance of the Roman Empire and in countries that was never
subject to Roman rule. It is pertinent to mention here that the Common Law Legal system

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derive its legal principles and legal phrases, terminologies and formation of treaties from the
Roman law.

IV. Legislation

Legislation has an overriding effect in modern times and Parliament initially played a
minor role in the law making though it gradually developed the functions of ratification of royal
decrees and initiate the royal legislation.

V. Historical Documents

Historical documents are important source in English Common Law. Such as Magna
Carta 1215, the great charter of 1297, Statute Concerning Tallage 1297, petition of rights 1627,
Habeas Corpus Act 1670, Bill of Rights 1689 etc.

VI. Conventions and Juristic writings

Conventions and jurists writing are the source of English Constitution, but their
importance cannot be minimized. Conventions are not laws, but they possess a force of law
and are obeyed because custom and expediency demand it. Their existence is essential because
they supplement the legal framework of the constitution and to facilitate its working.

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Historical Development of Common law

I. 6th to 11th century

In the history of common law Anglo-Saxon was the period of major developments
which shaped the common law. The Anglo-Saxon period in Britain spanned approximately the
six centuries from 410 to 1066 AD. Throughout this period law was enforced locally, crimes
were treated as wrongs, for which the offender had to compensate the victim. Both parties
would have to swear an oath.

II. Middle Ages period

Common law developed after the Norman Conquest. The Norman Conquest was the
11th-century invasion and occupation of England by an army made up of thousands of
Normans, Bretons, Flemish, and men from other French provinces, all led by the William the
Conqueror.

III. Control of England

William the conqueror (first Norman King) sent judges around the country to
consolidate his position after invasion. By the end of 12th century, it was common to send
judges around the country to ensure decisions were similar, which led to the notion of
precedent.

IV. Henry ll

Henry ll was the 5th king of England. In his region he institutionalized common law by
creating unified system of law, common to the country through incorporating local customs to
the national level.

Henry II developed the practice of sending judges from his council to hear the various
disputes throughout the country and return to the court thereafter. The king's judges would then
return to London and often discuss their cases and the decisions they made with the other
judges. These decisions would be recorded and filed. In time, a rule, known as precedent
developed, whereby a judge would be bound to follow the decision of an earlier judge.

V. Equity

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By the end of 15th century people were going to the King, claiming that common law
courts had made the wrong decision. King asked his chancellor to deal with these petitions.

The chancellors were priest as well as a judges, so his decisions were often influenced
by Christianity. This branch of law, which was amid to deal with injustices was called as
Equity,

VI. Equity and common law

Equity and common law co-existed for several hundred years, though not always
peacefully. In 1873, two legal system were combined, creating the supreme court of Judicature.

VII. Codification Period

In Codification period the great Jurists played a significant role for the Codification of
Common Law practices. Jurists of the era prepared first systematic, analytic treatise on English
common law: William Blackstone’s (1723-1780) Commentaries on the Laws of England.

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Judiciary in common law

In a common law country, lawyers make presentations to the judge (and sometimes the
jury) and examine witnesses themselves. The proceedings are then “refereed” by the judge,
who has somewhat greater flexibility than in a civil law system to fashion an appropriate
remedy at the conclusion of the case. In these cases, lawyers stand before the court and attempt
to persuade others on points of law and fact, and maintain a very active role in legal
proceedings. And unlike certain civil law jurisdictions, in common law countries such as the
United States, it is prohibited for anyone other than a fully licensed lawyer to prepare legal
documents of any kind for another person or entity. This is the province of lawyers alone.

Classification of court in common law:

I. Criminal Courts:

Criminal courts exist in order to hear and determine in which people are accused of
breaking the law. The case will be brought by th and decree of the court.it e prosecution against
an accused. If the accused is found guilty the criminal court has power to inflict punishment in
the form of fine and punishment.

II. Appellate Court

Appellate courts in common law system are limited to the ratification of error in law.
The appellate courts do not determine the facts.

III. Specialized Court

Specialized court are family court, tax courts and admiralty within jurisdiction have
specialized courts.

IV. The House of Lords:

The house of lord is the highest court in England.

V. Equity Court:

The rigid application of law without consideration of the fact is legalism. The English
court was forced to add the court of equity for flexibility and justice system.

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