Law and Equity Essay
(a) Outline the development of common law and equity.
There was no system of law in England and Wales before 1066, as it was mainly based on customs which were just rules of behaviour and the other used to be the decisions of judges. The law in England and Wales built over the centuries. There were various methods of creating laws which were called “sources of law”. However, in the 18th Century Parliament became more powerful which lead the Acts of Parliament (statues) to be the main sources of law today. Decisions made by the judges are also essential today as they interpreted Parliamentary law where there was no statue law. During the twentieth century statue law and judicial decisions continued to be the major sources of law but, in addition there were two new sources became increasingly important these were delegated legislation and European law. Delegated legislation is law made by a body other than Parliament. Parliament gives others the power to pass delegated legislation in a parent or enabling Act.
Customs are rules of behaviour that develop in a community without being deliberately invented. There are two main types of Customs: Local Customs and General Customs. Local customs is when a person claims to have some sort of a local right as they believe that right has always been accepted locally and they are claiming the right is local custom. Judges developed tests to decide whether to uphold such customs. One of the tests were that `the custom must have existed since time immemorial`. It was very unusual for a new custom to be considered by the judges, but there have been some case such as Egerton v Harding (1974) the court decided that there was a customary duty to fence land against cattle staying from the common. It is believed that the General custom was effectively the basis of the common law. When the country was brought under the centralised
As it was largely based on customs before 1066, Customs varied from place to place in the North the Dane Law was being put into operation, in the Midlands it was the Mercian Law and in the South/West part of the country Wessex law was being implemented.
However, in 1066 William of Normandy took over the England throne and set up the Curia Regis (King’s Court). This court consisted of nobleman who acted as judges. A practice was started of sending judges around the country to hold assizes (or sittings) to hear cases locally.
In 1154 when King Henry II came to the throne he divided the country into circuits which lead the tours of the judges to be more regular. The judges acted as a “sifting process” where they would return to West minister and discuss the various laws that have been operated around the country. This enabled the judges, over a period of roughly 200 years, to take the best local laws and apply them throughout the land. Thus, as a result of this in 1250 there was a law which was same all around the country and this is how `common law` was established. The principle of ‘stare decisis’ also came into place which meant ‘stand by the decision’ and forms the basis of precedent today.
There were many problems with the common law. The problems were mainly relating to the writ system which was a document containing the details of a person’s claim. The first problem with the writ system was that it was too rigid; if it was filled out incorrectly it would be completely ignored. The other problem was that the nobleman limited the type of writs due to the Provisions of Oxford 1258, so that certain categories of claim existed. The last problem was that the only remedy that the courts could give was the damages. This was not appropriate as in some cases such as in land disputes where money could not compensate the loss of land.
People were disappointed therefore they wrote to the king to complain. The king was known as the “The Fountain of Justice”. The king was overwhelmed by the complaints and passed it on the Chancellor...
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