Introduction to Common Law

Introduction to Common Law

Bibliography: Common Law introduction to English and American System, published by Dalloz

What is Common Law?

- In French it is “le droit commun”

- Historically speaking, the Common Law is used to describe the law developed by the English Royal Court, but today the expression is much broader, and used to refer to the legal system build on the traditional English legal system

Paragraph 1: The historical development of Common Law

A. The development of Common Law

The territory of the current UK was occupied at that time by the Roman Empire, then conquered by various tribes from Germany such as Anglo-Saxons and Danish people, who applied their own customs and traditions; all compiled.

The King of Wessex, in the 9th century, was Alfred the Great and he decided to publish a book with his own laws and rules, containing, 120 chapters. It started with the Exodus as well as the 10 commandments and followed with other parts from the Bible.

In all the parts of the UK, other people (Anglo-Saxons) developed a body of rules, very closed to the ones from the North of Europe. At that time, there were especially local customs and the territory had been Christianised in the 6th century. We could find customs in various areas of the UK where the law was applied. The Church had an important role (a major place).

In the 11th century, you could find various traditions, and many from the ancient British culture. In the southern part of England, the customs of the West Saxons were applied, and a code was edited (Alfred’s Code), and in the rest of the UK, Danish customs that were applied because of the Danish conquest.

There were traditions like ordeals (ordalies), trials and competitions and outlawry, process of outlawing (out of the law, beyond its protection = « mort civile » in French) ; writs (require for a person to appear in front of a court of law), tradition of the Jury (when people wanted to present witnesses, there wasn’t clear status for the witnesses, and the judges had an interest to have witnesses they could trust, so they asked to more reliable people (old people for example) to come before the court to testify, so the judges had the habit of making them stay so they would be part of the decision  the habit of jury was born. Finally, there were also county courts presided by the sheriff or by the bishop.

What happened in UK during and after the 11th century?

1) The creation of royal courts

In 1066, William the conqueror wanted to conquer the land and he was not interested in changing the law. A government was therefore established and a burocracy was built up. The law did not change but there was a Normand state which punished the serious crimes (so a sort of legal system was built up by the Normans).

When Henry II became king, he wanted to look after the law, and he sent official around the country to look after the organisation of justice. At that time, it became clear that the church needed to be separate from the state and from the court system. He also wanted to make the legal system “fairer”, and to make the trial by jury the standard system. In 1166 he created a famous royal decree: The Assize of Clarendon, in which it is declared that the trial by jury is the basis and by “12 lawful men”. At that time, the jury should notice the court if a case was suitable for prosecution. Even if the King supported Juries, there were still trial by combat until 1819.

When the Normand came, they brought their laws with them (and at that time it was a customary law) and there was no lawyer or so, and only the one who were literate was able to understand the law: clergy men. But this didn’t lead to an influence of roman law or canon law in England. Instead, a whole new body of rules were created: the Norman didn’t care about custom, and they wanted the people to continue their local tradition. But the King had his own court: The King Council for great affair of the state. But more and more people wanted their case overlooked by the King so more and more people started to apply to the King Council. That’s why the King appointed royal judges that were in charge of solving those conflicts, and they used to sit in Westminster, but the King accepted that those judges could go on provincial town, on circuit and therefore they took the law of Westminster with them, both on civil cases and criminal cases. Those judges declared new rules when there were no rules, and the new rules they declared was called “common law” because they were common to the whole Kingdom, and therefore different to the local custom.

Using the expression “common law” was a way to show the people that the rules created by the judges were superior. Those new rules, the judges said that they were immemorial rules, even if they were new, so they were “justified”

There were 3 different courts at the time:

- The King’s Bench: suppose to deal with the most important cases (mostly criminal cases)

- The Court of Common Pleas: it has jurisdiction over ordinary civil actions

- The Court of the Exchequer: dealt with cases regarding the royal revenue

But beside those courts, there were church courts who applied canon law.

2) The forms of action

It was interesting for the court to have more and more cases because they perceived fees for what they did, and it was a great thing for the King treasury. But at the same time, it was decided that the royal courts were created just for the most important cases. That’s what they created the process of the Writ. The Writ is a written order from the king or the king chancery that allow someone to appear in court. There is a different writ for every legal action.

You can present your case in a certain way, so your case appears to fit in a specific writ. For example, a case regarding a breach in a contract was never taken by the royal court, so if you could fit your case into a certain writ that you know would be accepted, then you may have a chance.

As the procedure to get a writ was really complicated, there were specialized lawyers to get the correct procedure (because one expression wrong

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