History of Common Law

Topics: Common law, Contract, Law Pages: 34 (9593 words) Published: June 22, 2011


* Great Britain (E/W/S)
* United Kingdom (GB + NI)
* British Islands (UK + Isle of Man + Channel Isles)

= The legal system of England and Wales (“the laws of England and Wales” from 1967). These laws mainly deal with issues of property, theft, inheritance, money… The legal system of England and Wales is the basis of most legal systems in the Commonwealth and the US (except Louisiana).

* Religious law
It refers to the notion of a religious system or document being used as a legal source.

* Civil law
It derives from Roman law traditions. It’s also known as Continental European law. Laws recognized as authoritative are codifications in a constitution or statute passed by legislature. They are codified laws = civil code.

* Common law
It is made by judges in court applying knowledge and common sense of legal precedent to the facts presented. There is no major codification of the law, and judicial precedents (= authority) are binding as opposed to persuasive. The idea of the common sense is applied in all the legal system of English law. Binding precedent relies on the legal principle of stare decisis (“to stand by things decided”) > judges are obliged to respect the precedents established by prior decisions. Existing binding precedents from past cases are applied in principle to new situations by analogy. Laws can be amended by Acts of Parliament or European Court of Justice (especially for Human rights).

Time immemorial = “time out of mind” > a time before legal history and beyond legal memory. It is the period between Roman-Britain (43-410) and Norman-Britain (before 1066).

Evolution of pre-common law:
* Ethelbert = king of Kent in 604
All the laws created under Ethelbert’s reign are known as the “dooms of Kent” (=judgments). Ethelbert’s code makes reference to the church (compensation required for property of a bishop, a priest…). Venerable Bede asserted they were composed “in accordance with Roman precedents”. This was the 1st attempt to write precedents.

* King Ine of Wessex = Law of Wessex (≈ 690)
They shed light on the history of Anglo-Saxon society and revealed Ine’s Christian convictions. His laws survived only because Alfred the Great appended them to his own code of laws later.

* Ordinance of Alfred (≈900) > Doom Book consists of his own laws followed by his predecessor King Ine (= basis of Common Law) * Code of Canute (≈1035) > “Dooms of Canute the Dane” (king of Denmark) are the most comprehensive statutes of the 9th century. Statutes (de loi) = laws passed by the government

* Distinguish between law and right
In some kingdoms, only the king had rights. But, as the country evolved, people thought that laws should be applied for all > people obtained rights. Dooms (= judgments/decisions and depended of kingdoms) are distinct from Canon law (= body of laws and regulations made/adopted by ecclesiastical authorities > deals with moral issues)

* Justice passed primarily through Canon courts presided by religious and lay judges (= persons assisting the judge). So, cases were limited because you should have money to go to court * Anglo-Saxon tradition = law-making focused on “the king as the protector of the realm, the corrector of wrongs” * Development of shires, counties and hundreds > after the Romans left, England disintegrated and clans took control over a territory * “Personal laws” evolved into “local customs” into “customary laws” > personal laws deal with matters pertaining to a person (family). They are expressed in books by the dominant group. The latter grew and personal laws became the local customs. When the Normans came, local customs became customary laws. Primogeniture (Norman tradition) = the right, by law or...
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