English or common law

The common law system came into being historically in England largely as the result of activity
of Royal court of Justice after the Norman Conquest –David and Brierley.
Common law has several meanings. Broadly it is sum total of the laws of Anglo-American legal
system and in narrow sense, it is to that part of law, which was created by the king’s court in
England, as opposed to the statute law on the one hand and the rules and practice of equity on the
other. Before to the Norman Conquest, there was Roman law in practice in England. French
William I, who not only defeated Germans but ended their system of rule in 1066 and introduced
a new system in England. Therefore the period from 1066 to 1485 is the period of its origin and
development. After the Norman Conquest, an English law common to the whole country was
gradually created and replaced the then tribal laws based on local custom. Thus, common law is
the body of law for the whole country. It is the native product of England. When the sanctions
were defeated by Normans, English law did not appear suddenly like in France or Russia, where
the legal system of an ancient regime was replaced by a new one. The English common law is
more attached to the past than other legal systems. It is more tied to the traditional legal thinking
despite social and economic change brought by industrial revolution.Royal court of Justice
played an important role for its development. Litigant, who could not get Justice as according to
the rule of custom and tradition, began to ring the bell of Royal palace. Justice was the
prerogatives of king. The king used to deliver Justice. But as number of litigants and cases began
to rise, it became impossible to the king to decide all cases. Hence, he delivered his power to the
judges and there came the Royal court of Justice, in existence in England. Being situated in
Royal palace it was called court of West Ministers too.
Unlike France and Germany, English common law was not influenced by Roman law nor was it
affected by the idea of codification. It was built up on custom, traditions and precedent. After the
Norman Conquest, Norman customary law was not forced on the state, but the whole country
was unified under the centralized administration under the crown. All the powers of the state
were concentrated in the king and his advisors. After French William I, Henary II (1154-1189)
attempted a lot for its development.
The history and development of English common law can be broadly divided into,
· Anglo Saxon law
 · After the Norman conquest and,
· Modern and recent common law
Before to 1066 or prior to Norman conquest England was loosely united and the central
government was weak and inefficient. There were local courts based on their ancestral customs.
But, after the Norman Conquest they established a strong and centralized administration under
crown. Hence, the period of tribal rule came to an end and feudalism was established in its place.
This highly organized feudalism paved the road for the development of English common law.
But after 1285 Royal court replaced the feudal courts. Common law is still the basis of modern
English law and is continuously developing through the precedent and of course through
legislation in recent days. ‘Justice is Royal prerogative’ was their common belief. In lack of any
other means of remedy people used to ring the bell of Royal palace and the king were applying
their residuary power used to deliver the Justice. In this way there began the system of writ
jurisdiction. In this course of its development there came certain change and amendment but its
structure and principle did not change its feature. Therefore, common law is judge-made, bench-
made law rather than a fixed body of definite rules such as modern civil law codes.
Technically, the area of application of English law is limited to England and Wales. It is neither
the law of United Kingdom, nor that of Great Britain, but even though nowadays it is in practice
in USA, Australia, New Zealand, India, Nepal and other English speaking countries.
Common law developed following the custom and culture of England with its unique concept,
methodology, source of law, structure and hierarchy, categories and division. Therefore, it is
better to know about the organization of government and the constitutional practice of England
first.
A) The legislature: England is a democratic state with a strong parliamentary
government; consisting two houses
(1) Lower house i.e. House of common and
(2) Upper house i.e. House of Lords.

Although English law is judge made law even though British Parliament had played an important
role for the origin and development of its legal system. England has no any written constitution ,
therefore its legal system is in operation as according to its custom, tradition, decision of the
court and legislative enactments of its parliament and these all are the basic law of England. Law
enacted by the parliament bears the binding force of constitution and the English courts are not
authorized to declare them ultra-vires or void. But, in another hand British parliament never
enacts any such law against the concept of its unwritten constitution.
The union of the Queen, House of common and House of Lords is parliament in England. Any
Bill passed by its houses becomes an Act only after getting ascent of the Queen. But a British
king never rules, he is head of the state and never does any wrong. The House of Lords performs
judicial functions too. The House of Lords is its apex in the English court structure, its decision
bears the binding force of law and most of the constitutional concepts are based on its judicial
decisions.

B)The Executive: It is a union of Queen and Prime Minister. Queen is the head of the state
and Prime Minister is the head of the government. Prime minister is independent to frame
his ministry. He is the leader of majority party in the House of Commons. His powers can
be compared with the President of U.S.A. He rules his state and drives the administration.
He is the leader of the majority party in the house, where his opinions counts. But, he is
responsible to the Parliament, collectively with his Council of Ministers. In lack of
Parliamentary confidence, he shall have to resign. His responsibility is to execute the law
enacted by parliament. Therefore, function of the council of ministers in England is to
execute the law enacted by the parliament. Hence, it can be said that the Council of
Ministers does not rules in England but it is the law that rules in England.
Therefore, the English legal system was originated and developed with a significant role of
its executive organ of the government.

C)The Judiciary: Independent judiciary and rule of law is the salient feature of English
legal system. English court makes law. English courts are not empowered with the
authority of judicial review. There is supremacy of Parliament and the House of Lords is
the court of last resort i.e. apex court. Customs and traditions are the source of law in
England. Therefore, British parliament had never attempted to go against it in its history.

Structure of English law

Structure of English law is based on English culture and customs unlike to Romano Germanic
legal system that which is based on codification. It is originated and developed through judge
made law. It was developed through a long legal practice supported by reason and logic. There
came first common law and there after English court accepted the principle of equity to meet the
justice.
1. Common law: Such a set of rules comes under the heading of common law that which is
based on English culture, customs and tradition which are adopted by common law courts of
England are common law. In the beginning the Royal judges used to apply the various local
customs to settle the disputes, hence they accepted the customary laws of the people. They
began to compare the pros and cons of those local laws i.e. customary laws, which let to
application of the same legal rules all over the state. In this way the foundation of common law
was laid in England. Hence, it can be said that it was not developed by legislation but by the
court decisions based on precedent which refers to earlier decision, that which is the backbone
of English common law even today.
Thus it can be said that common law includes ancient customs, judicial precedents and
legislation. It is called common law because it was made for the common use of England and
Wales. In absence of codified law, English judges gave recognition to such established social
practice and customs and accordingly, following such customs they decided the cases. Such a
set of principles can be said The Common Law of England that which is applied by their judges
in due course of their judgment. In this way they created law that which is common law of
England with its universal effect. It is a judicial practice that depends on their logic, a judge
made law which left its impact on judicial administration of England.
2. Equity: English common law could not meet their every need with their defective
procedures and practices. To avoid such defect, they adopted a new practice and left their
traditional approach or practices. They developed a practice that litigants who felt they had been
cheated by the common law system would petition the king, chancellor, as in the capacity of
king's advisor; decide the cases on the ground of fair, just and good conscience. Justice based on
honesty and truthfulness. It is to provide relief to victims where this traditional rule and
procedure of law stands like a hindrance before it. It is to establish justice rather than to follow
the rigid rule or procedure established by law. In the process it accepted the principle of "that
equity should prevail".
 There is a saying "equity follows the law" but when it becomes impossible to provide judicial
remedy simply relying on equity, if needed a special treatment that which was completely based
on discretionary power of Judges. It developed the principle of specific performance and
injunction, that which provides the judicial remedy to establish the Right in Personam in its
infringement to provide the relief to victims.
3. Codification of substantive and procedural law started in England as a result of judicial
practice of judges and lawyers. Therefore it is more practical rather than theoretical; for example;
(a)Burden of proof lies on prosecutor
(b)Right of silence
(c)Court is not to investigate the crime
(d)Court is only to weight evidence that which is produced before to it
In this way, neither it is federal like states nor there lie different set of law like in France (Public
law and Private law). It is unitary in its design and is developed through judicial decision of past
(precedent). As a whole in its structure, sets of common law, law of equity and legislation can be
found. Statutory law or legislation never rules common law. Legislation always gives way to
common law. Although there is supremacy of parliament and court are not authorized to declare
any law unconstitutional. But in practice British parliament always regards the common law.

Structure of English Court

Before Judicature Act 1873-1875 there were different courts in England such as Queen’s Bench,
Court of Exchequer, court of common pleas etc. Through Court of Exchequer rules of equity
developed and complemented the common law. Other courts were common courts that
developed the common law system.
These courts were fused into the one judicial hierarchy by the Judicature Act 1873-1875. Now
there is one single court structure in England.
 HOUSE OF LORDS

COURT OF APPEAL

CRIMINAL DIVISION CIVIL DIVISION

(Appeals from the crown court) (Appeals from the high courts, tribunals
and certain cases from country courts)

Country court Chancery Division Queen’s Bench Family

Division

Organization of courts can be divided in two parts. (a) Superior court and (b) Inferior courts
(a)Superior courts- under superior courts heading following courts are there.
1. House of lords
2. Judicial committee of Privy Council and
3. Supreme Court of Judicature. Its branches/division is
· Court of Appeal
· Crown court and
· High court of justice. It’s branches/division are
v The Queen’s Bench
v The chancery Division and
v Family division

(b) Inferior Courts

i) Country Court
ii) Magistrate Court
In this structure civil and criminal courts are organized differently.
Civil Jurisdiction

House of Lords

Court of Appeal

Country court Chancery division Queen’s Bench Family Division

Inferior civil courts

Country Court: It is the lowest unit of civil court. Its judges are called circuit judge. They are
paid judges. Under the jurisdiction of every circuit there may be 8 or 9 country courts and in
every circuit there is 1 or 2 circuit judge.
Circuit judges shall be appointed from Barristers; Eligibility for a circuit judge is not less than
seven years of law practice as a barrister and shall be appointed by Lord Chancellor.
Under its jurisdiction there causes any dispute of property not more than 400 pound or such a
land dispute not more than 100 pound releable value per annum. Dispute relating to house rent or
compensation for any injury relating to a labor, civil division of court of appeal hears its appeal.
A circuit judge is empowered to make any settlement in between the litigants.
Superior civil courts
In between country court and House of Lords there is Supreme Court of Judicature.
1. Supreme Court of Judicature was established by Supreme Court of Judicature Act 1873-
75. Previously there were different court but after the commencement of this Act there comes
an uniformity. It is divided in two divisions i.e. (a) High court of justice and (b) Court of
Appeals.

(a) High court of justice is a division of Supreme Court of Judicature; having three divisions
(I) Queen’s Bench (II) Chancery and (III) Family. Under its jurisdiction there comes both
original and appellate jurisdiction. Its judges are called Puisnie judge and only barristers are
allowed to plea before to them.

Queen’s Bench division: Ordinary civil cases are under its jurisdiction, e.g., insurance, breach
of contract or cases relating to commercial transactions or their institutions. Under its
jurisdiction there comes both original and appeal.
There shall be one chief justice and others 24 judges. Queen shall appoint them with a
recommendation of Lord Chancellor.

Chancery division: Wills, administration of estate, trust, mortgages, rights and interests of
infants and cases relating to land disputes are under its jurisdiction. It is an equity court. It
considers more on merit of case and justice than to decide question of law and its procedure.
Lord Chancellor is its chief and other judges shall be appointed by the Queen on her
recommendation.

Family division: Marriage, divorce, matrimonial cases, legality of child is under its concern.

(b) Court of Appeals is a division of Supreme Court of Judicature. Under its jurisdiction
there comes appeal from Country Court and high court of justice (with its all division).
Only, barristers are eligible to plead in this court.
One Master of Roll and other 8 Lord Justice of Appeal are its judges. The Queen appoints
its judges on the recommendation of Lord Chancellor.

2. House of Lords: is a final court of appeal or Court of last resorts in civil cases. Under its
jurisdiction there comes appeal from Court of Appeal, some public importance and interest
 cases can be direct appealed here over the decision of High court of Justice before to be
decided by Court of Appeal.
It consists of 1 Lord Chancellor (Minister of Law and Justices) with 11 Law Lords. Only
barristers are eligible to plead here. The Queen appoints Lord Chancellor on the
recommendation of the Prime Minister and Law Lords are to be appointed by the Queen on
the recommendation of Lord Chancellor.
Lord Chancellor is the chairman of Judicial Committee of Privy Council and is a member
of Council of Ministers. It’s another function is to decide the cases of impeachment.
Its decision bears the binding force of law.

Criminal Jurisdiction or courts

House of Lords

High court of Justice Court of Appeal

Queen’s Bench division

Crown court

Magistrate court

Inferior criminal court

Court of magistrate and Petty session: Court of Magistrate is a local level court. It is a lowest
level criminal court. Its judges are called Justice of Peace. Home secretary appoints the justice of
peace of countryside. They are not paid judges where as in Metropolitan cities, Magistrates are
the Justice of Peace and are to be appointed by the Queen with the recommendation of Lord
Chancellor and paid judges.
This Justice of Peace are authorized with a limited jurisdiction.Only such a petty criminal cases
comes under their jurisdiction, not extending more than 14 days imprisonment or not more than
20 shilling fine. This is a single bench court. If there comes any serious case, two Justice of
Peace shall preside the court. In such a case they are empowered to fine up to 50 pound and up to
6 months imprisonment.
Quarter session: Before to 1971, when there came Court Act 1971 in force, there was Quarter
session court for criminal cases. It was a lower criminal court and was empowered to hear appeal
with original Jurisdiction. It was a criminal country court, and was authorized to hear all criminal
cases except murder and treason. Its judges were called Recorder. It was repealed by Court Act
1971 and Crown Court takes over its jurisdiction.

Superior criminal court

Court of Assizes: Previously before to 1971 there was court of Assizes. It was a division of the
Queen’s Bench in High court of Justice. It was a mobile court and was authorized with original
and Appellate Jurisdiction. Its judges were to be appointed by the Queen with the
recommendation of Lord Chancellor. Court Act 1971 repealed this court and crown court take
over its jurisdiction.
Crown court: Previously, Crown Court was in Liverpool and Manchester only. After coming in
force of Court Act 1971 Crown Court became more powerful. Court Act 1971 handed over all
the jurisdiction of Quarter session court and Court of Assizes.
Central criminal court is a criminal court for London city.
The court of Criminal Appeal: It is a criminal appeal division of Court of Appeal. Its judges are
called Lord of Chief Justice and Justice of Appeal respectively. Previously, before to Court Act
1971, it was an appeal court for Quarter Session Court and Court of Assizes. Likewise it was an
appeal court over the decision of Magistrate court, where there arises any dispute relating to
question of law. Now there came a change brought by Court Act 1971.
Now, it is an appeal court over this crown court, its decision is final, if there exists no any legal
issue relating to any public interest and importance on question of law. If Attorney General
considers that there remain to decide any such questions of law relating to public interest and
importance shall be appealable before to the House of Lords.
House of Lords: It is final court i.e. Court of Last Resorts or Apex Court. Law Lords are its
judges. There comes only cases’ relating to question of law under its jurisdiction. Cases decided
by criminal division of Court of Appeal come under its jurisdiction. If there exists any issue
relating to public importance then it also falls under its jurisdiction. Its decision is binding in
force with a mandatory character and all courts including it have to follow the decision.
There is no any system of judicial review in U.K. There is supremacy of parliament and English
parliament is sovereign. English court cannot declare any law unconstitutional. Even though no
one can say that English court is not independent. It is possible only because there is RULE OF
LAW .i.e.
A) Equality before law
B) Supremacy of law and
C) Constitution is the result of ordinary law
It is there common belief that judiciary is the guardian of people.

English Superior courts are authorized with writ jurisdiction. The Queen’s Bench of High Court
is authorized with to issue writ to protect the people’s right against state.

1) Judicial Committee of Privy Council: Under its jurisdiction, there comes appeal from British
colonies and cases relating budgetary expenditure and its control of U.K. Its judges are Law
Lords of House of Lords

2) Administrative and Quasi Judicial Courts: These special courts or tribunals are under judicial
control and High Court of Justice is its supervisory body.