Common law refers to the law created by judges that was historically significant but has been since superseded by parliament. It is in parallel with equity which refers to the source of law created by the Lord Chancellor which was designed to supplement the common law and allow people the opportunity to avoid the inherent problems. Equity is ‘the gloss on the common law’. The following report will go through step by step on how common law and equity have developed between the years 1066 to our present day.
2.0 Development of Common Law
In very early times- before King Alfred, there was no system of justice which applied to the whole of the country. The population was not ruled by a single monarch, transport and communications were available to very few and no law books were available, however, the population was very small at this time, therefore meaning it was not required as much as nowadays.
In 1066, William I made changes to the old system, introducing the Curia Regis and appointing judges-common law was first introduced during this time. The kings representatives were sent throughout the land to check local administration and hear local cases. Cases were interpreted and customised to suit the whole country. After introducing the Curia Regis William ordered all his disputes to be heard in a court situated in Westminster using only his version of the law. This caused a problem because it meant that there was only one court situated in the South of England. This caused William to send his representatives to their local areas to hear distributes. These were known as itinerant justices but 90 years later Henry II renamed them circuit judges.
The common law however, was not written down immediately, however, after a period of time it was written down and later a further development was made and the ruling made by kings, were also written down. This was a huge development for Common Law in the legal system as it gave some sort of guidance with cases.
3.0 Problems with common law
3.1 Problem 1
The first problem that occurred was the writ system; before a case could begin the complainant had to obtain a writ. Originally, writs were reserved for special cases because most cases were heard in the Eyre. However, the trend became to create new writs so that royal courts could hear more cases. In 1189 there were about 40 writs, by the time of Edward (1272-1307) there were more than 400. In the 1300’s the number of writs became fixed and if a writ didn't fit the facts of a particular case then it would be thrown out of court. The maxim “no writ, no remedy.” The common law was based on the writ system, which could cause difficulty, as it was sometimes difficult to find writs which fitted the exact case. This caused a problem because the ‘Provisions of Oxford 1258’ forbid the creation of new writs which meant that they had to fit their facts into an exact existing writ. This problem with the writ system led to people creating ‘fictions’ so that their case would fit into a writ. They would do this by adding their own facts or they would omit to meet a writ.
3.2 Problem 2
Common Law was praised however as time has gone on peoples circumstances have changed, it was noticed that common law was rigid and as a result was unable to satisfy the growing needs of the people. It was known that the writs were very technical documents. This caused a problem because the wording in the writs could be mistaken or incorrect which meant that a person would lose their case if their writs were written wrongly, this lead to injustice in some of the cases.
3.3 Problem 3
The final problem of Common Law was related to ‘remedy’ or ‘solution’. Common Law only gave one type of remedy and this was damages. This meant that if something was damaged or hurt then the complainant would receive compensation, this meant that they would be given money to make up for the damage that was caused. But.....sadly enough this remedy was not...
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