Elemente de Drept Englezesc - Lecture 1

- COMMON LAW

Common law did not exist at the time of the Norman Conquest. Before 1066, Anglo-Saxon law consisted in local customs applied by assemblies of free men, called county courts. Before William I conquered England, the country was socially atomized. There were local laws and institutions, which often reflected the customs and traditions of previous invading cultures, such as the Angles, Saxons, Jutes, Danes, etc. For instance, in Kent, the English region settled by the Jutes, the custom of intestate succession dictated that the land was to be divided equally amongst the sons, whereas elsewhere the land would be assigned to the eldest son. What is surprising is the fact that this Kentish custom survived as an anomaly of the law of intestate succession until the 1025 reforms. Yet, the Norman Conquest changed very little in terms of the local administration of local laws and customs. What the Norman Conquest brought new was the development of a legal principle, namely that tenure of land implied jurisdiction. In this way the feudal lords created their own feudal courts, presiding over the administration of their lands and those who worked then. These feudal courts were called baronial or manorial courts. By virtue of the hierarchical organization of the feudal society, courts were also subject to a hierarchy. What did that mean in practice? Well, it meant that the highest court was the King’s court because the King, as the owner of the land, was the one who gave land directly to the highest nobles of the realm called Tenants in Chief. In turn, the Tenants in chief gave land to the lower lords, so the King’s court had jurisdiction over the Tenants in Chief, while the tenants in Chief had jurisdiction over the other feudal lords. But these courts, too, applied local customary law. Parallel to the feudal courts, ecclesiastical courts were also created, where cases were settled by canon law, namely religious law common to all Christendom.

William’s successors managed to make the system more efficient by creating a more centralized and specialized form of government. This was achieved in two ways: (i) by delegating the royal judicative power to itinerant justices, organized in circuits, who would travel around the country holding sittings (Assizes) to hear and settle cases to be tried in the county towns and enforce the king’s rights. The first of these circuits were designed to raise royal revenue by enforcing the financial rights of the crown and by “causing justice to be done”, the more so as forfeitures, fines and amercements became an important source of royal revenue; (ii) three static royal courts of justice (Curia Regis) were created, located at Westminster. These were the Court of the Exchequer, specialized in the questions of royal finance (you can now understand why the British minister of finance is called the Chancellor of the Exchequer), the Court of Common Pleas which had a wide first instance jurisdiction in ordinary litigation among subjects and the Court of King’s Bench which had an appellate and supervisory jurisdiction over all royal justice, except that within the jurisdiction of the Exchequer. In the 11th and 12th centuries, the royal court of justice had limited jurisdiction, as disputes were normally brought before the feudal courts or the ecclesiastical courts. The King’s court only heard cases in exceptional circumstances, it was a court for important personalities and important disputes (eg. when the peace of the kingdom was threatened). Later on, the same judges sat at Westminster as sat on the Assizes, so there was a high degree of uniformity in the decisions made in the static and itinerant courts. The jurisdiction of these courts was extended until it became common to the whole kingdom. Therefore, the law created by this jurisdiction came to be known as common law (common to the whole of England).

Thus, given its origins, common law can be defined as the general law contained in decided cases, as opposed to Acts of Parliament. It is that part of the law of England formulated, developed and administered by the old common law courts, based originally on the common customs and it is unwritten. It is the body of customary law, resting upon judicial decisions and embodied in reports of decided cases. It is the law administered by the common-law courts of England since the Middle Ages. From this body of law has evolved the type of legal system found also in the United States (except for Louisiana) , Australia, Canada (except for Quebec), Ghana, Hong Kong, India, Jamaica, Malaysia, new Zealand, Pakistan, Tanzania, the Bahamas and Zambia. Common law is to be distinguished from the law created by the enactment of the legislative bodies. It comprises the body of principles and rules of action, relating to the government and security of persons of property, which derives their authority solely from customs or from the judgments and decrees issued by the courts. Common law is also to be distinguished from ecclesiastical law, because it is the system of jurisprudence administered by the purely secular tribunals. In this sense, common law is based on the above-mentioned hierarchy of the in all the jurisdictions and the principle of binding precedent, which in practice means that the decision of a higher court is binding in a lower court, that is the decision must be followed and in the course of a trial judges may refer to existing precedents. Judges may also consider decisions given in lower courts, but they are not bound to follow them. Nevertheless, a decision made by a court of equal or greater status must be applied if it is to the point, that is relevant or pertinent. In other words, during a trial the current case will be compared to other cases and it will be distinguished from other cases referred to or it will be considered similar, namely it will be argued that the rule at law reasoned and established in a previous case is applicable and should be followed. Hence the term case law. The precedent is the rule of law which the first instance judge relied on in determining the outcome of the case.