Legal History week 6

What happened at the Congress of Vienna?

At the Congress of Vienna, Europe was redrafted

→ Kingdom of Holland + Belgium + Luxemburg → Kingdom of the Netherlands

1. Functioning as a protestant haven and as a buffer for France

→ William I - King of the Netherlands (son of Stadtholder William V)

William I asked Joan Mechoir Kemper to create a new Dutch codification

• Drafts in 1816 and 1820

→ He neglected the southern lands which led to dissatisfaction

→ He was replaced by Pierre Thomas Nikolai

→ The draft was ready in 1830 but Belgian Revolution

→ Introduced in the Netherlands in 1838

In the direct aftermath of WW2, the Dutch government decided Eduard Maurits Meijers - Recodify

1992: Intoduction of the New Dutch Civil Code

(It has more German influence than French because Meijers liked the German code)

What are the basic circumstances regarding England and roman law?

• 43 - 410 AD: England was part of the Roman empire, BUT there was no reception of Roman law

• Scotland was not part of the Roman Empire, BUT there was reception of roman law

• England was not influenced by the French revolution → no codification

• Middel ages source of law: Customary law

• In England there was no hereditary succession, the king had to be chosen by an assembly of noble men

What happened in the Battle of Hastings?

1066: Battle of Hastings - Duke of Normandy, William the Conqueror won the battle against Harold Godwinson (the king of England)

(Willam the Conqueror became king)

Who did Henry II mary what did he support?

Henry II married Eleanor of Aquitaine thus Aquitane became part of the kingdom.

He supported the centralisation of justice.

What were the justices in Eyre?

Justices in Eyre were royal judges who went around the country and set courtrooms in order to adjudicate (circuit judges)

(Sometimes the king also joined in order to collect collect taxes on their way)

What was Magna Carta?

Magna Carta (1215) were the Rights of the noblility, but also established a fixed court in Westminster

Westminster- Fixed royal court where people could go if they did not want to wait for the circut judges

What were ‘Writs’ ?

Writs started as commands to local authority to ensure that orders were followed (ex. you won a land case, the person who stole your land had to give it back)

→ They developed to become summons, if the defendant believed he could argumentate his actions, he could go with the writ to the court and have his side of the story heard

→ If there was no writ for a case, the Lord of Chancery would make a new one → expanding jurisdiction

→ The body that issued these writs was the Chancery

→ Judges did not have knowledge of the real facts, hence witnesses were called to give evidence in regaards to the case → Jury

→ Compared to local courts which used ordeals and similar ways of adjudication, Royal Courts became preferred and famous → jurisdiction of local courts had less importance

What were the 4 types of courts?

1. Court of common pleas

2. Court of Kings bench

3. Court of the Exchequer

4. Court of Chancery

Court of common pleas:

• Had its seat in Westminster (because of cl. 17 in Magna Carta)

• A common plea must have been an element which was in the interest of the king

• Because of feudal system, the king owned everyones land, thus, land disputes were considered of the kings interest

• common law started from cases that had to do with land

Court of kings bench:

• Criminal courts

• Torts/contracts (not clear distinction)

• Everytime a crime takes place, the kings peace is disturbed

• → expanded jurisdiction

Court of the exchequer:

• Started as a committee that kept the kings books (taxes etc)

• Mainly money disputes

• If the debtor does not pay me, I can not pay taxes → expanding jurisdiction

Court of Chancery:

• Equity (what is right or fair) was applied, since common law could not be used because there was no adequate court or writ

• Became popular because common law sometimes did not have any remedies oftentimes (specific performance; website builder who did not build the site example)

(Judges would make money based on the cases they judged, hence they wanted to expand their jurisdiction so they judged more cases and make more money)

What did someone who wanted to go to court have to do?

If somone wanted to go to court → would go to the solicitor → the solicitor would go to the barrister → the barrister would go to the court.

Barrister had the exclusive right to go before the royal court .

What is ‘De Legibus et Consuetudinibus Angliae’

De Legibus et Consuetudinibus Angliae means: On the laws and customs of england.

• By Henry Bracton

• Categorised common law based on Roman law (used roman law as an organisational inspiration)

What is important to know about the court judgements ?

• Customary law could be found in judgements of the court

• Frequently, court judgements differed

• It was decided to make court judgements binding so as to avoid contradtctions

What were the ‘Year books’ ?

Year Books: Barristers who wanted to make extra money, wrote cases and judgements and published them

• These books were used for precedence, since judgements were given orally (sometimes year books were inaccurate)

How did the Parliaments rise to power happen?

Parliaments rise to power → the parliament became the legislator → did not like the fact that the chancery can make rules (by making writs)

• They voted for the Provisions of Oxford (1258) which forbade the making of new writs

• The courts were allowed to apply writs to similar cases ‘in Consimili casu’

→ Problem arose where since people needed legal remedies in the form of new writs

→ When there was no writ, judges could ask the Lord Chancellor and ask him to intervene

→ Lord Chancellor decided to create the Court of Chancery

What is the relationship between common law and equity?

(Can you just go to the courts of equity because you did not like what common law said?)

• Equity follows the law, but in a conflict, equity will prevail

• If common law is unconscionable, equity can come and override it

• Equity helps supplement or even correct common law

Ius civile and ius praetorium have a similar relationship.

Ius praetorium theoretically applied equity + supplement and correct ius civile.

People are arguing that common law is becoming too chaotic.

Two positions taken by two famous lawyers . Which were they?

William blackstone:

• 1st vinerian professor of common law

• He wrote ‘‘Commentaries on the laws of England’’

• He said that common law is like a gothic castle, its big and complicated but nice

• It just needs some refurbishing → merge equity and common law

Jeremy Bentham:

• Philosopher + professor

• He had a fundamental problem with common law

• He said that common law is like dog law since its judge made law (a judge makes a law (custom) when a case comes to him)

• He supported a codification like in roman times

(Although Jeremy Bentham was influential outside of england, in England they chose Blackstones ideas)

What was the Judicature act 1873/1875?

The Judicature act was a merger on the application of equity and common law.

(BUT common law and equity REMAIN SEPERATE sources of law. That is why sometimes you have to ask for an equitable solution, because judges simply apply common law)

High court of justice (1st instance)

Court of Appeal

Surpreme Court (previously house of lords)

(One court for common law and equity)

What happened with the relationship between states and common law?

Dr Bonham’s case (1610)

The fact that the doctors association could decide who can become a general practitioner, meant they were a sort of judge. Sir Edward Coke said this goes against common law. Everytime a statute goes against common law, a common law judge can check legislation.

→ predecessor of judicial review.

Result: Common law judges can test statutes against common law

Nowadays statutes come from parliamentary sovereignty and cannon be tested against common law.

How did the interpretation and construction of statutes work?

The english approach- general rule of interpretation → GRAMMATICAL

European approach- they have to have wide ranging methods of interpretation

Two reasons for this difference:

1. Practical: If in England you interpret something grammatically and it is not applicable, then the judge does not remain empty handed, he has common law

2. Constitutional: argued by Lord Simmons: ‘‘It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation’’ English judges feel like it is outside their scope to actually legislate by interpreting something extensively.

Precedents:

The judge does not create common law, but he simply finds the law. It is important in such a system to have a system that is organised. That is how the idea developed that a string of decisions is evidende of the common law.

Stare decisis - becase official ony recently slides (introduction of the stare decisi rule train rule)

The beautiful art of distinguishing - the way of having precedents not apply to your case by arguing that the case is different)

Ratio decidendi: the rationale for the decision (binding parz)

Obiter dicta: statements said in passing, incidental statements (not binding)

The House of Lords Practice Declaration- the stare decisis may lead to injustice thus adherence to it should not be too rigid.