Background to the English legal system
English law is applied in England and Wales as well as in the US, except of course Louisiana which a Roman law country Its influence has also remained in Commonwealth countries which were colonized by the British.
Scottish law is based on Roman law, and Northern Ireland law is yet another system.
These 4 countries share a common parliament whichis the sole statute making body. Statute law is therefore applicable in the whole of the UK.
English law is uncodified. It is essentially based on jurisprudence which affects the whole approach to law: its conceptualization and methods used.
The 2 main sources of English law are:
1) case law
2) statute law.
Case law, in other words, judge-made law, statute law, legislation.Since the entry of GB into the European Economic Community on January 1st 1973 we must also add:
3) community law which often takes precedent over national law.
1) CASE LAW
Case law is made up of common law and equity. Common law has several different meanings:
1) The Norman Commion? lay or Common law which replaced local customary law in the Middle Ages and made the law common orthe same for everyone throughout England and Wales. This was in an effort of uniformity.
2) Common law built on local custom as opposed to statute law enacted by parliament in Westminster. (Unit 2)
3) Common law as opposed to Equity which evolved in the Court of Chancery to complete common law.
4) Common law as a system based on customs and uncodified as opposed to the codifiedRoman civil law to be found on the continent.
Background to Common Law
At the time of the Norman Conquest by William the Conqueror in 1066 there was a whole complex network of local courts throughout England. Under the Normans, the barons who owned the land presided over these courts. It was only much later under Henry II that this local customary law declined and courts were replacedby royal courts in an effort to unify law.
At the same time the kings entrance??? circuit judge who travelled around the country to settle disputes. These judges sat in the Assizes. Originally the kings sat in the curia regis, that is the royal court, as he was seen as the founding head of justice.
By the 14th century the kings no longer effectively sat in the Curia Rejis but thecourt, which even today is called the court of the kings or, as appropriate, queens’ bench, reminds us of that time.
There was an increasing number of appeals to the royal courts as they were more modern and generally more efficient than the older ones. Originally they only dealt with disputes in which the interest of the Crown played a part, in other words public law.
Gradually, however,they dealt indifferently with public and private law. The Court of Common Pleas grew out of this situation as it was established in order to hear civil cases. Thanks to Magna Carta in 1215, it was decided that civil cases, judging disputes between individuals in which the state has no role to play, should then be judged in the Court of Common Pleas.
This was one of 3 royal courts which wereto be found in London together with the Court of Common Pleas, the Court of the Exchequer and the Court of the Kings, or as appropriate Queen’s Bench.
Quite naturally the federal barons opposed the royal courts as they saw their own privileges disappear. The judges in the royal courts operated a system of case law, thus building up a system of common law and extending their jurisdiction.Royal courts then became dominant as from the 15th century and local courts gradually disappeared. Interestingly, until the 19th century there were at least theoretically only to be applied to exceptionally.
Common law then was built up case by case. The doctrine of precedents looking back to previous cases and proceeding by analogy is the basis of this case law.
Case Law and the...
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