Comparative Law Spring 2002Professor Susanna FischerCLASS 36ENGLISH LEGAL HISTORYSOURCES OF ENGLISH LAWApril 15, 2002

A Flying Tour of English Legal History

Many legal institutions in England as well as in the U.S. are, as Penny Darbyshire states, “only explicable in terms of history”E.g. Inns of Court, Queen’s Bench and Chancery Divisions of English High Court, jury, distinction between law and equity, Justice of the Peace (magistrate) in English system

English Law and Roman Law

Why was the Roman law influence comparatively less strong in England than in France or Germany?

English Law and Roman Law

Why was the Roman law influence comparatively less strong in England than in France or Germany? England already had a unified common law system prior to the Norman Conquest in 1066 and the English thus did not see the need to look to Roman law for assistance

Anglo-Saxon law (prior to 1066)

Earliest period of recorded English lawTribal law applicable to particular tribal area such as Mercia or KentCustomary law Considerable differences in law from one tribal area to anotherTrend was toward unification, when the Anglo-Saxons were conquered by William the Conqueror in the Norman Conquest of 1066

Norman Conquest (1066)

William the Conqueror of Normandy came to power in 1066Imposed strong national governmentMonarch owned all land and granted it to his followers on certain conditions – similar grants continued down the chain of monarch’s followers’ followers.Each feudal lord held his own feudal court (which subsisted until land reforms of 1925)

Development of Royal CourtsIn the 12th/13th centuries, the English kings developed 3 royal courts that sat at Westminster:Court of Exchequer – Barons mostly heard cases affecting royal revenue, some limited civil jurisdictionCourt of King’s Bench – Chief Justices/Judges heard cases in which King had an interestCourt of Common Pleas – Chief Justices/Judges adjucated civil cases between individuals

Common Law: Highly Technical

Actions begun by issue of a royal writClaim had to be set out in accepted wayClaimant had to find an appropriate form of action, or the law would not provide a remedy

Addition of the Court of Chancery

Some litigants were dissatisfied with the system of royal justice dispensed by the 3 royal courts. They petitioned the monarch to do justice. He passed their petitions onto the Lord Chancellor, who set up his own Court of Chancery to deal with the petitions.By the 15th c, the Lord Chancellor’s legal decisions became known as “equity”, separate from the “law” of the other 3 royal courts.Equity/Law distinction survives in the U.S. e.g. Delaware

Equity: New Rights and Remedies

The Lord Chancellor’s system tried to remedy problems caused by overly rigid and technical royal legal system. Equity took a more flexible approach to doing justice.New rights and remedies were created. What are some examples?

Examples of Equity

Law of trusts, mortgages, remedies of injunction and specific performance, declaratory judgments, right of rectification, right of rescission, appointment of receiversAlso new proceduures – subpoenas to order attendance of witnesses, oral examination of witnesses, discovery, hearing cases in English as opposed to Latin

What are Some Famous Maxims of Equity?

Remember that equity is based on fairness and natural justiceAlso remember that equitable remedies are discretionary

What are Some Famous Maxims of Equity?

He who comes to equity must come with clean handsEquity will not suffer a wrong to be without a remedyDelay defeats equity (e.g. laches)Equity looks to the intent rather than the form

18th and 19th Century Problems with Court of Chancery

Overburdened with workThis led to horrendous delays – see Charles Dickens’ Bleak House

Separate Courts Survived Until the Late 19th Century

Despite conflicts over jurisdiction (resolved in the case of law/equity in Equity’s favor in 1615), all these separate royal courts survived for centuries until in the 1870s, they were merged into the present High Court of Justice by the Judicature Acts (1873-1875).Many of their names survive to this day in the English legal system Why was this legislation passed?Were these really merged?

Not a Total MergerAlthough the Court of Queen’s Bench (which is the merged court for the 3 royal courts of King’s Bench, Common Please, and Exchequer) and the Court of Chancery are administratively combined into 2 divisions in th High Court, the Queen’s Bench and Chancery remain separate jurisdictions with separate judges and a distinction in work, and somewhat different procedure.All courts now administer both common law and equity.

The High Court of Justice

Queen’s Bench DivisionChancery DivisionProbate, Divorce, and Admiralty Division (separate divisions because under the old system wills and divorce were ecclesiastical and there was a separate admiralty court) – in 1970, this was redistributed (e.g. Admiralty to Queen’s Bench Division) and a Family Division was established.

Appellate Courts1873-75: Creation of Civil Court of Appeal. Intention was to get rid of the judicial division of House of Lords, but House of Lords as final court of appeal in civil cases was retained by statute in 18761907: Creation of Court of Criminal Appeal – which became Court of Appeal (Criminal Division) in 1966. Further appeal to House of Lords1971: Establishment of Crown Court to hear criminal cases

Sources of English LawEC lawActs of Parliament (parliamentary supremacy – can courts judicially review Acts of Parliament?)Delegated legislation (orders in council, statutory instruments, byelaws– can courts judicially review this?)Case law Custom (very limited application)Books of authority – different treatment between certain ancient textbooks that are sources of law and modern ones that aren’t

Precedent

What is stare decisis?There are rules of precedent applicable to different courts – e.g. House of Lords binds all other lower courts but does not bind itself. Court of Appeal binds all lower courts but not the House of Lords and normally binds itself for future. High Court is not binding on self but on lower courts. County Court, Magistrates Courts, and Crown court are not binding.

Judgments

What is the ratio decidendi? What do Americans call this, if anything?What is meant by obiter dicta?