History of Common Law

History of Common Law

  • Definition and Origin of Common Law

    • English law is based on a common law system that developed historically due to various legal systems before the Norman Conquest.
    • Each locality had different laws influenced by invaders, leading to a gradual emergence of common principles imposed by the monarchy.
    • Development of stare decisis (let the decision stand) which led to the binding precedent in the common law system.
    • The English legal system reflects societal changes over time, distinguishing it from civil law systems predominant in continental Europe, notably influenced by the French Civil Code.

  • Advantages of Common Law

    • Certainty: Provides predictability in legal outcomes through established precedents, helping individuals understand how their cases may be treated.
    • Flexibility: Adaptable to societal changes, judges can modify laws on a case-by-case basis.
    • Quicker legal evolution in response to real situations compared to the slower legislative processes of Parliament.
    • Hayek’s perspective: argues for a diminished role of Parliament in favor of common law, suggesting that robust laws will naturally survive societal shifts.

  • Disadvantages of Common Law

    • Volume of Legal Material: The extensive amount of case law can make it challenging to derive relevant principles, leading to overwhelming information for legal practitioners.
    • Challenges of Binding Precedent: Judges may feel constrained to follow precedent even when it conflicts with their judgment or leads to illogical distinctions.
    • Lack of Comprehensive Legal Code: The piecemeal development of law can lead to gaps in legal coverage, unlike civil law systems that provide systematic codification.
    • Retroactive Effect of Judicial Decisions: Common law can apply new principles retroactively, raising fairness concerns, as observed in the case of SW v United Kingdom (1995).

  • Diversity of Legal Sources

    • Definition of law varies: recognized as rules enforceable by penalties, but also reflects socio-political norms.
    • England has an unwritten constitution, which results in varied sources of law, including statutes and case law, leading to collaboration across all branches of government.
    • Supremacy of Parliament: Parliament is the highest law-making body supported by democratic legitimacy. The rise of judicial activism and EU influences has shifted power dynamics recently.

  • Historical Development Context

    • Before the Norman Conquest, different laws existed; stare decisis system emerged to unify legal principles across England.
    • The common law, developed through judicial decisions and later exported during colonial expansion, faced increased judicial activism post-1950s.
    • Judges encouraged to adapt law to meet contemporary needs, exemplified by Lord Denning's views in "The Need for a New Equity" (1952).
    • Lord Scarman emphasized the judiciary's role, stating courts must adapt while Parliament can intervene to correct socially unacceptable outcomes.

  • Role of Juries

    • Trial by jury introduced during the Norman Conquest; evolved from administrative roles to objective decision-making under the principle of minimal prior case knowledge.
    • Bushell's Case (1670): Established juries as sole judges of fact, enabling them to act according to their conscience; juries can choose to acquit even when the law demands otherwise.

  • Precedents in Common Law

    • Stare Decisis: Upholds fairness by requiring adherence to established precedents.
    • Ratio Decidendi: Legal reasoning behind decisions that forms precedent for future cases.
    • Judges may reference analogous cases when establishing new precedents, known as reasoning by analogy.
    • Original Precedent: Created when a point of law is undecided, guiding future cases based on closest principles.
    • Binding Precedent: Must be followed in similar cases; ensures a consistent application of law across different courts.