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Development of Common Law


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Index
Serial Topic Number 1 2 3 4 5 6 7 8 9 10 11 12 Introduction What is common law? Origin of common law Evolution of common law Page Number 5 6 7 8

Introduction to development of common law 10 Development of common law Definitions of common law and equity How equity began? Common law and equity Equitable maxims Conclusion Bibliography 11 12 13 14 16 18 19

Introduction

Common Law is a system of law in place in England and its colonies. It

has been administered by the

common-law courts of England since the middle ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth formerly the British Commonwealth of Nations. The crafting of English Common Law was begun in the reign of Henry II, who had foreign legal learning and instituted legal reform in England. The royal judges of Henry II, and of succeeding reigns, evolved the Common Law from the procedure of the King's central courtsthe Court of King's Bench, the Exchequer, and the Court of Common Pleas. The term common law is, however, now used in several different senses as marking special contrasts. For instance we say that England and the United States (with the exception of Louisiana) and most of the commonwealth countries are common law countries when we wish to contrast the Anglo-American systems as a whole with those of countries like France whose law ultimately derives from the Roman law and we call these common law countries. And within our system common law as will appear, is also contrasted with equity. Having thus explained the primary meaning of common law, we will now go into the course of development that it followed.

What is common law?


Common Law is a system of law in place in England and its colonies. It is a type of law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only nonbinding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Origin of common law


The English common law originated in the early Middle Ages in the Kings Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

The common law of England was largely created in the period after the Norman Conquest of 1066. The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced this change.

Government was centralized, a bureaucracy built up, and written records maintained. Elements of the Anglo-Saxon system that survived were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court). Important consolidation occurred during the reign of Henry II (115489). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction.

This early centralization also diminished the reception of Roman law in England, in contrast to most other countries of Europe after the decline of feudalism. The expression common law, was devised to distinguish the general law from local or group customs and privileges, and thus came to suggest to citizens a universal law, founded on reason and superior in type. By the 13th century, three central courtsExchequer, Common Pleas, and Kings Bench applied the common law. Although the same law was applied in each court, they vied in offering better remedies to litigants in order to increase their fees.

Evolution of common law


Nowadays a civil action starts with the serving of a writ of summons: this is a formal document and the purpose of serving it is to give notice to the defendant upon whom it is served that the plaintiff intends to bring proceedings against him, and to warn him to defend the action. The formulation of the grounds of the plaintiffs case comes substantially, through the pleadings, at a later stage. Under the old law the system was different. The standard machinery for starting an action at common law in any of the three common law courts was the original writ. Writs were simply concise written orders from higher authority. The use of writs for administrative purposes goes back to the Anglo-Saxon times and was probably a borrowing from a Frankish court practice. It echoes the mandates of ancient Rome. The original writs were documents obtained from the administrative office of the chancery. There were many variations in form according to what sort of matter was involved, but the general purpose for which most of them were designed was to secure the presence of the defendant before the royal court, usually through the agency of the sheriff of the country in which the dispute arose. Further each writ contained a brief statement of the plaintiffs ground of claim. Writs rapidly became stylized: claims containing certain types of misconduct came to be recognized and each type of misconduct came to have its own appropriate writ. Bringing an action in common law thus came generally to consist of selecting the writ appropriate to the facts of a plaintiffs case. Into one or other of the accepted forms, the facts of the case had to fit. If they did not fit, however just a claim, the plaintiff must fail. But thought writs thus became stereotyped there had to be a means of creating new ones, otherwise the law could not have developed. The agencies of evolution varied. Sometimes the parliament would recognize a new form of action; sometimes the creation would be administrative as by the chancery clerks. However, by the fourteenth century, after much hesitation and political obstruction a practice emerged by which the courts upon the facts stated, and upon proof by the plaintiff of actual loss inflicted on him by the defendant, allowed actions on the case to succeed. Cautiously and slowly the development of new writs through actions on
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the case was, at first slow and a matter of development by strict analogy from pre-existing writs. In this way our common law grew. Thus the evolution of common law can be traced to the proliferation of the forms of action (writs). This evolution was a long one, extending over more than seven hundred years; and there were times of stagnation as after the Barons was in the thirteenth century; and there were times of change, as, strangely perhaps in view of the overweening power of the monarchy, in the early Tudor period. There were experiments: new forms replaced old ones; few writs and few rights could only be asserted in the royal courts and this expanded continuously until they were abolished and in sum they contained the common law. The modern system based upon the Judicature Acts now prevail and the ancient system has gone. Legal innovation especially legislation during the past hundred years has been prolific, so that we have cut away from the roots created by the writs. Yet the framework of our civil actions are still based on them

Introduction to development of common law

Early common law was somewhat inflexible; it would not adjudicate a case that did not fall precisely under the purview of a particular writ and had an unwieldy set of procedural rules. Except for a few types of lawsuits in which the object was to recover real or personal property, the only remedy provided was money damages; the body of legal principles known as equity evolved partly to overcome these deficiencies. Until comparatively recent times there was a sharp division between common law (or legal jurisprudence) and equity (or equitable jurisprudence). In 1848 the state of New York enacted a code of civil procedure (drafted by David Dudley Field) that merged law and equity into one jurisdiction. Thenceforth, actions at law and suits in equity were to be administered in the same courts and under the same procedure. The Field code reforms were adopted by most states of the United States, by the federal government, and by Great Britain (in the Judicature Act of 1873).

Development of common law


Historical Background

Before the Norman Conquest, different areas of England were governed by different systems of law, often adapted from those of the various invaders who had settled there. This became roughly Dane law in the north, Mercian law around the midlands and Wessex law in the south and west. The king had little control over the country as a whole, and there was no effective central government. In 1066 when William the Conqueror gained the English throne he established a strong central government and began to standardize the law. Representatives of the king (itinerant justices) were sent to check the administration in the countryside and adjudicated local disputes in accordance to local laws. When they returned to Westminster they discussed the different laws which were present around the country and decided which ones to keep and which to dismiss. By about 1250 a common law had been produced which ruled the whole country. This was exported around the world to many Commonwealth countries. In the days of Henry VIII or Elizabeth I the monarch was the supreme law maker and royal decisions were final. The power of the monarch gradually reduced and in the 1640s the English Civil War was fought between King Charles I and Parliament, in part over the issue of the king making decisions without consulting Parliament. In the 19th century, the House of Commons was also becoming more important as the franchise (the right to vote) was gradually extended.

Definition of Common Law and Equity


Common Law A law established by following earlier judicial decisions. Equity A specific set of legal principles, which add to those provided in the common law. Common law, system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courtsKing's Bench, Exchequer, and the Court of Common Pleas which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term common law is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation, and also to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice. All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.

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How equity began?


By the 12th century, common law courts had developed which applied the common law discussed above. Civil actions in these courts had to be started by a writ (a legal document), which set out the cause of the action or the grounds for the claim made, and there grew up different types of writ. Early on new writs were created to suit the situation but this was stopped in the 13th century. Litigants had to fit their circumstances to one of the available types of writ: if the case did not fall within one of those types, there was no way of bringing the case to the common law court. At this time common law was also becoming more rigid with only one remedy being offered, which was damages. This was not always an adequate solution to every problem. Dissatisfied parties started to petition the king, who was thought of as the fountain of justice. These petitions were commonly passed to the Chancellor, the kings chief minister, as the king didnt want to spend his time considering them. By 1474 the Chancellor was being petitioned himself and had begun to make decisions on the cases on his own authority, rather than as a substitute for the king. (This was the beginning of the Court of Chancery). Litigants appeared before the Chancellor, who would question them, and then deliver a verdict based on his own moral view of the question. The court could insist that relevant documents be disclosed, as well as questioning the parties in person, unlike the common law courts which did not admit oral evidence until the 16th century, and had no way of extracting the truth from litigants. Because the court followed no binding rules, relying entirely on the Chancellors view of right and wrong, it could enforce right not recognized by the common law, which, restricted by precedent, was failing to adapt to new circumstances. The Court of Chancery could provide whatever remedy best suited the case, and this type of justice came to be known as equity.

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Common Law and Equity


The Court of Chancery became popular but caused resentment amongst the common lawyers, who argued that the quality of the decisions depended on the quality of the Chancellor. Because precedents were not followed and each case was considered purely on its merits, justice could appear arbitrary, and nobody could predict what a decision might be. However, the flexibility of the court was seen as the great advantage of equity where rules are laid down, there will always be situations in which those rules produce injustice. The common lawyers resented the way in which equity could be used to restrict their own jurisdiction. Where common law gave a litigant a right which, in the circumstances, it would be unjust to exercise, the Court of Chancery could issue a common injunction, preventing the exercise of the common law right. The Earl of Oxfords Case 1615 Conflicting judgments of the common law courts and the Court of Chancery were referred to the king for a decision; he advised that where there was conflict, equity should prevail. Had this decision not been made, equity would have been worthless it could not fulfill its role of filling in the gaps of the common law unless it was dominant. The rivalry continued for some time, but gradually reduced as equity too began to be ruled by precedent and standard principles, a development related to the fact that it was becoming established practice to appoint lawyers rather than clergy to the office of Lord Chancellor. By the 19th century, equity had a developed case law and recognizable principles, and was no less rigid than common law. The Judicature Acts

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Once equity became a body of law, rather than an arbitrary exercise of conscience, there was no reason why it needed its own courts. Consequently the Judicature Acts of 1873-75, which established the basis of the court structure we have today, provided that equity and common law could both be administrated by all courts, and that there would no longer be different procedures for seeking equitable and common law remedies. Although the Court of Chancery remained as a division of the High Court, like all other courts it can now apply both common law and equity. Equity today The Judicature Acts did not fuse common law and equity, only their administration. There is still a body of rules of equity which is distant form common law rules, and acts as an addition to it. Where there is conflict, equity still prevails.

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Equitable maxims
Although both the common law and equity lay down rules developed from precedents, equity also created maxims which had to be satisfied before equitable rules could be applied. These maxims were designed to ensure that decisions were morally fair. The following are some of them. He who comes to equity must come with clean hands: This means that claimants who have themselves been in the wrong in some way will not be granted an equitable remedy. D&C Builders v Rees (1966): A small building firm did some work on the house of a couple named Rees. The bill came to 732, of which Rees has already paid 250. When the builders asked for the balance of 482, the Rees announced the work was defective, and they were only prepared to pay 300. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the 300 in completion of the account. The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppels, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders financial difficulties, and therefore had not come with clean hands. He who seeks equity must do equity: Anyone who seeks equitable relief must be prepared to act fairly towards their opponent. Chappell v Times Newspapers Ltd (1975 :) Newspaper employees who had been threatened that they would be sacked unless they stopped their strike action applied for an injunction to prevent their employers from carrying out the threat. The court held that, in order to be awarded the

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remedy, the strikers should undertake that they would withdraw their strike action if the injunction was granted. Since they refused to do this, the injunction was refused. Delay defeats equities: Where a claimant takes an unreasonably long time to bring an action, equitable remedies will not be available. The unreasonableness of any delay will be a matter of fact to be assessed in view of the circumstances in each case. Leaf v International Galleries (1950): The claimant bought a painting of Salisbury Cathedral described (innocently) by the seller as a genuine Constable. Five years later, the buyer discovered that it was nothing of the sort, and claimed the equitable remedy of recission, but the court held that the delay had been too long.These maxims (there are several others) mean that where a claimants case relies on a rule of equity, rather than a rule of common law, that rule can only be applied if the maxims are satisfied unlike common law rules which have no such limitations

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Conclusion
Common law (also known as case law or precedent) is a type of law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only nonbinding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems. Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations or regions that trace their legal heritage to England as former colonies of the British Empire, including the United States, Barbados, Malaysia, Singapore,

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Bangladesh, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Zimbabwe, Hong Kong, and Australia.

Bibliography

Outlines of Indian legal history-M.P.Jain The common law Holmes The history of English law-Pollock Introduction to English law Common law module www.wikipedia.com www.googlebooks.com www.pdffiles.com

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