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Lecture Notes: Introduction to the Law of England and Wales

Introduction to Law and Legal System

Part I: What is Law - Common Law and the Role of the Courts

  • Defining Law:

    • Twining and Miers: Law is a general norm mandating or guiding conduct in a given situation.
    • Holland and Webb: Law is a system of rules that guides and directs our daily activities, like purchases, work conduct, and relationships with the state.
    • Rules are normative, indicating what should happen but not all rules become laws.
    • Law reflects the values of the age and culture, which varies across cultural settings.

  • Differing Perceptions of Law:

    • Legal Positivists: Laws are edicts and commands from the most powerful groups, emanating from the sovereign.
      • Law reflects the exercise of power, enforced by the state.
    • Modern Western Patterns: Emerged from Roman Law through Napoleonic codes, including human rights discourse, aiming for homogenization and uniformity.
    • Ancient Hindu Philosophy: Perceived the cosmos as an interlinked whole, not limited to specific domains like law or politics. Other holistic traditions include Chinese, Japanese, and African cultures where oral traditions and customs serve as law.

  • Historical Perspective on Sources of Law:

    • Norman Conquest (1066): A convenient starting point marked by the Battle of Hastings.
    • Doomsday Book (1086): Served as an inventory of the nation's wealth for law and administration purposes.
    • Tower of London (1070): Castle building symbolized the permanence of Norman rule.

  • What is Common Law?

    • Origins:
      • Norman Conquest and the Doomsday Book mark the beginning.
      • Henry II (1154-1189) established key features like jury trial and legal uniformity through judicial circuits.
      • New remedies became available in royal courts, abolishing trial by ordeal.
      • Common law is enforced throughout the land by itinerant justices, trained in a single legal tradition.
      • Inns of Court were established, responsible for the professional legal training of barristers.
      • Judges are typically recruited from barristers with expertise in legal reasoning.

  • Common Law Authority:

    • The King’s Court (curia regis) or King’s/Queen’s Bench Division of the High Court has a long supervisory role.
    • Laws LJ in Cart ([2011] QB 120, paras 44ff) traces this back to William I.
    • The King’s Bench was established by the end of the 13th century and remained central until 1873.
    • Blackstone’s Commentaries (1768) describes the King’s Bench as the supreme court of common law, keeping inferior jurisdictions within their bounds.

  • Defining Common Law:

    • Waldron (1990, 139): Common law refers to judges' decisions in areas not governed by Acts of Parliament, built up as a system of precedents.
    • Loughlin (2023, 19): Common law is a body of ancient custom, usages, practices, and rulings evolved from immemorial times. It’s