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common law study: study of historically changed and changing complex of ideas, expectations, tasks and demands. It also about the rather mysterious thing called law and how law manifest itself and is given identity and set of tasks to perform Normative issue: all the opinions people hold about how things ought to be system: connotes interconnectedness, interrelatedness, coherence and consistency. the English Legal System has eluded conceptualisation and consistency. no-one should be a judge in their own cause.: nemo judex in causa sua common law tradition: the Judge is the bearer of the system, its guardian or priest Law needs to be rendered visible so that people come to accept that law rules and not men Most common argument to reform common legal system is codification. The judges are the living oracles of the law

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common law history: hundreds of years of development beginning with Anglo-Saxon custom (in the period up to 1066) and the impact of the Norman rationalisation and centralisation of authority. Over the subsequent centuries it grew through complex process of recognising and rationalising the multitude of judicial decisions that judges of the central court created. In studying the common law it is important to appreciate that it is a complex historical product with a number of distinctive features Historical perspective - Law was local custom, largely unwritten and understood as a set or orally transmitted rules. As a body of rules, their contents seem to be directed as preventing bloodshed by recognising elementary rights to property and personal freedom and substituting compensation for the rigours of blood feed as revenge for injury. William developed central administration law


no right could be recognised in the common law unless a writ existed that provide remedy for this breach: Ubi rimedium ubu jus To respond to these a practice grew of partitioning the king (as fountain of justice) Counsellor dealt with petitions culminating in the creation of Court of Chancery presided over by the Lord Chancellor applying a systems of rules known as equity rather than the common law of ordinary courts The Court of Chancery was often called Court of Conscience (a man must come to equity with clean hands)


common law principles: Common laws reside in judicial decisions rather than rule - mode of treating legal problems rather than rule (supremacy of law, case law and hearing cause as a whole in open court), institution of trial by jury judicial empiricism; pragmatic case-bycase decision making guided by past precedents; common law unity has been attributed to its being grounded in, and logically derived from, a handful of general principles; The Common law is inductive and empirical in nature - proceeding in incremental way laying its rules on a case by case basis, inferring a general principle after precedents justify that interference


Maxims: hey are principles and authorities that become part of the general custom of common law of the land and bind judges when it is argued they applied to a case. more important than precedents, but as legal procedures become more detailed and complex, maxim lost their forced and ceased to be of much practical significance ; (: ; );

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when plaintiff does not prove his case the defendant is absolved: Actore non probante reus absolvitur An argument deduced in law is strongest in law: argumentum ab impossibili plurmun varlet in lege natural equity or good faith does not permit us to demand twice payment for the same thing: bona fides non patitur, ut bis idem exigatur (buyers beware): caveat emptor (no one is punished for merely thinking of a crime: cogitationis poenam nemo patitur No man ought to derive benefit from his own wrongdoing): commondum ex injuri sun non habare debet Cotterrell 1989: According to the declaratory doctrine of common law, Judges do no make laws, but they are 'the depositories of the laws, the living oracles who must decides all cases of doubt' judicial decisions according to Matthew Hale: Matthew Hale writing in the seventeen century, do not make law 'for that only the king and the parliament can do', but are evidence of law, and though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such whosoever (...)' opinion. The judge is the spokesman for the community about its laws, but a particularly authoritative spokesman

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Characteristics of common law were gradually carved out from the authority of the Crown and the Church.: concern to determine legal dispute according to their individual characteristics rather than applying general statement of legal principles; the source of law is to be found in the text of the judgement (unwritten yet written - pass down from generation to generation and compilation began in the nineteen century); it applies to all person including the state; adoption of an inductive legal reason whereby legal principles are derived from the texts of many single judgements; litigation system in which trial is distinct and the climax of litigation process; courtroom practice where many are subject to rigid and technical rule; the system is more participatory and parties control proceeding, the role of the judiciary is more restrictive than proactive; the judicial process has an inherent power to adjudicate separately from the political or executive process; the efforts and expenses of determining litigations falls largely on the parties; establishment of a system for the just resolution of dispute and the maintenance of social order.


legal 'families' refer: to the coherent similarities that group together the various legal systems in the world into distinguishable 'traditions' or 'families'. Some of these derive from religion (Sharia and Thalmudic legal systems); others are associated with particular political and social ideology (common laws, civil law and roman law and the now declining socialist law). Characteristics - objective of the laws, sources of law, legal reasoning and methodology, structure of pre-court and trial proceedings


English legal system is adversarial (accusational) and civil law system is inquisitorial: n the adversarial system the parties dictate, within the constraints of traditional form and packages - such a writs, forms of action and pleadings. The success of a case therefore often rests on the ability of an advocate to manipulate proceeding and not just on the weight of evidence The system rests on these assumptions - both parties are represented, the lawyers representing each party are efficient and equally matched; the lawyers will promote their clients' interests.

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only the immediate and not remote causes are to be considered: Causa proxima, non remota spectur Courts are formal structures for decision-making. A narrowing of issues occurs where the court will only engage in relevant issues. A great deal of human element may not be addressable in that forum.: The King's Court (Curia Regis) was legitimated in two ways: the King could hold court as feudal lord for his tenants as the ultimate landholder; the king could exercise residuary justice inherited from the general principle of kingship which had existed in rather week form during the Anglo-Saxon period The king introduced certain from of machinery for deciding legal questions and developed centralised writ system and ensuing form of action. A writ was a command from the king, which would be enforced against the offender by punishment or imprisonment


legal reasoning.: The particular methodologies created by courts for justifying and discipline their discretion is called. Settlement reached by negotiation between the disputants; settlement where a binding decision is given by a third party with a degree of authority adjudication Six principles proposed by Pollock and Maitland: he court of the king was the court to which his subject should go in default of justice elsewhere; under Henry II the writ became compulsory for all pleas relating to freehold land; when a matter relating to land was fought in the feudal court, after conquest the appropriate method of trial was judicial combat; writ of right commenced proceedings that were very technical and their technicality increased with time; pleas of the crown from their nature determined before the royal justices; although trespass played the largest part in the development of the common law, the royal courts tried other disputes if they were brought before them by writ purchased from the chancery



justice until 14th century: Until the 14th century the use of Royal Court was extraordinary and not ordinary justice. Ordinary justice were done in the communal and feudal courts When a writ acquired a common form it become writ of course (brevium de corse) writ of debt for non-payment; writ of covenant could only be proved if the covenant is sealed. The extreme formality was done away with in the nineteen century;: Until the 14th century the use of Royal Court was extraordinary and not ordinary justice. Ordinary justice were done in the communal and feudal courts



1988 civil Justice Review: was the most important source of reform in modern era For the civil process the scale of changes increased with the Woolf Report, while the criminal justice system has been the subject of several reports


structure of courts: magistrate courts (wide and varied jurisdiction involved virtually all criminal cases, the most important feature is the extensive involvement of lay person (non lawyers); county courts - there are (250 country courts in England. Courts of first instance in civil judicial process, their jurisdiction has been concurrent with the High Court hence the argument that they should be amalgamated. Claims over 50,000 will be heard in high court while limit of 25,000 in county court and 30 at both; The Royal Court - court of first instance in criminal case, jury trial is available only at the royal courts. he High Court based in London with provincial branches; merely one part of the supreme court of England Magistrate Courts - County Courts - Royal Court - High Court (Queens Bench Division - personal injury, contract and tort claims, Family Division - divorce and auxiliary matters; and Chancery Division) Court of appeal - House of Lords - Judicial Committee of Privy Council


hierarchical framework of courts: The courts are arranged in hierarchical framework on the basis of seniority. The higher the level of seniority the greater the court's authority. In general there are trial court (courts of first instance, where parties appear, witnesses testify and evidence presented) there are appellate courts (where a party dissatisfied with the decision of the lower court appeals). Appellate court can only decide the question of law and its decision is based on the record made during the trial. Appellate courts do not receive new testimony or decide question of fact and in a lot of jurisdiction appellate courts only issue written opinions.


Attorney General V British Broadcasting Commission (1980): HL stated that the essential difference between a tribunal and a court is that tribunal does not administer any part of the judicial power of the state. It has specific jurisdiction as allocated by Parliament and does not enjoy a broad jurisdiction defined in general terms.


Magistrate and County courts: are bound by the judgment of the high courts, Court of Appeal and House of Lord; their decisions are not binding on any court, but may be persuasive STRUCTURE OF JUDICIAL OPINION: A judicial opinion usually begins with a description of facts Some judges, Lord Dennings was an example, like to construct a narrative which intermixes the 'laws' with 'facts' while others demarcate the two The account often proceeds as follows: o The procedural history o The presentation of questions to be answered o Rules of law and/or appropriate principles of laws. Given that these are interpretations of ratios of earlier cases or of status there is room for substantial disagreement o The application of law to the fact o The holding decision o The disposition to practical direction to give effect to the courts decisions



rhetoric: Judgement always contains rhetoric (the art of persuasion by the use of language) for they are addressed to an audience o To assure the parties that justice is done and they are also addressed to courts higher in the hierarchy The process of making common law is almost indistinguishable from its interpretation There has been longstanding jurisprudential dispute about whether rules or principles lie at the heart of the common law Today most commentator have return to the classic view that principles are the essence of case law Judges merely 'declare' what the law us. Obviously Judges will sometime formulate a new principles, but this is almost always presented as an outgrowth or even clarification of a former principle, rather than a new construction: Donoghue v Stevenson (1932) AC 562 of the principle of duty of care, that became the foundation of the modern law of negligence Donogue v Stevenson (1932) was not to create the duty of care but to expand it by allowing the claim to succeed independently from any contractual obligation



Common law developing through the judges articulating new developments out of old principles that are only partly expressed in the cases that are argued before them as precedents: ...


D v Stevenson: A relatively straightforward account of the 'facts' as follows: o Stevenson was a manufacturer of soft drings o Stevenson manufactured a bottle of ginger beer, which had in it a dead snail o The ginger bear was aerated (carbonated) in an opaque bottle, and sealed with a crown seal o Stevenson sold the bottle of ginger beer containing the snail to a distributor who sold it to a Mr. Minchella, the owner of a case in Paisely (a town near Glasgow) this case was initially dealt with in the Scottish Court. o Mrs Donoghue and a friend went to Mr.Minchela's case in Paisely. The friend purchased the bottle of ginger beer, which contained the dead snail o At the time of purchase the ginger beer was still aerated (carbonated) in the original opaque bottle, and sealed by the crown seal o Mr. Minchela opened the bottle and poured some of the ginger beer into a glass. He gave both the glass and the bottle to the friend, who gave the glass to Mrs Donoghue. Mrs. Donogue drank some of the ginger bear from the glass. Her friend then started to pour the remainder of the ginger beer from the bottle into Donogue's glass, when a dead snail floated out of the bottle o Mrs. Donogue suffered shock from the sight of the snail, and contracted severe gastro-enteritis as a result of the earlier drinking the ginger beer contaminated by the remains of the dead snail.


Goodhard (1931, 1959) a Jurist set out the methods of identifying the ratio decidendi as follows:: he principle of case is not found in the reason given in the opinion o The principle is not found in the rule of law set forth in the opinion o The principle is not necessarily found by a consideration of all the ascertainable facts of the case and the judge's decision o The principle of is found by taking account of a) the fact treated by the judge as material, and b) his or her decision based on them o In finding the principle, it is also necessary to establish what facts were held to be immaterial by the Judge, for the principle may depend as much on exclusion as it does in inclusion


Julius Stone suggested, rationes are dependent upon the level of generality of analysis.: ...

The Norman Conquest By virtue of having conquered England, William the First was able to proclaim that all land and land-based rights, including those of keeping court, were now vested in the king. Through this redistribution of land and the consolidation of all rights and relationships associated with land tenure under the crown, local courts eventually came under the administration of Norman rule, Court keeping rights were still granted concerning land tenure, However, all courts had to he conducted in accordance with the king's interests, particularly his monetary interests. Thus, judicial decision-making was slowly being transformed into the function of an increasingly bureaucratic system of justice. The king's interest in assuring a proper flow of justice-profits into the royal treasury brought about the institution of the eyre. Developed in the twelfth century as a powerful force for centralizing control over local courts, the eyre provided the structural basis for the development of a common law for England. It consisted of four itinerant judges representing the king who would periodically examine the activities of the county and hundred courts. One of the focuses of this king's court was to enforce forfeiture laws. This concept stemmed from the feudal doctrine that a man's right to hold property was based upon a relationship of good faith between that man and his lord. The term felony originally meant an offense "so fundamental as to break the relationship between them and to cause the holding to be forfeited to the lord." It was the duty of the judges in Pyre to insure that the king received his portion of forfeited property resulting from any such offenses occurring in the various county and hundred jurisdictions. "Law and order on the national scale were first expressed in terms of revenue." It was the decisions made by the judges in eyre concerning the common pleas brought before them that produced the body of legal precedent that became known as common law, that is, the rules of dispute settlement common to all England. As the itinerant judges in eyre, settled common-plea cases they established precedents to be followed in similar cases. Because common law was built on a case-by-case basis the terms "common law" and "case law" are sometimes used synonymously. The development of English common law was not merely the institutionalization of traditional English customs. The rules of law established by the king's courts were often unprecedented. Thus, the common law of England was "the by-product of an administrative triumph: the way in which the government of England came to be centralized and specialized during the centuries after the conquest." By seeking to eliminate variations in settlements arising from differences in local custom, '-the establishment of common law gave rise to a concept of justice the emphasized the uniform application of standardized laws and procedures. This concept was embodied in the doctrine of stare decisis that emphasized the importance of legal precedents established in previously settled cases. Common law was primarily oriented not toward protecting individuals from ordinary threats to person and property -but toward maintaining social peace by regulating the economic arrangements characteristic of feudal land tenure and consolidating royal power under this system. English Law and the Emergence of Capital By capturing a greater share of the wealth of England, the growing mercantile class also captured a greater influence over the law of England. A common law designed primarily to protect the rights of feudal land ownership was wholly inadequate to the needs of a class whose goal was the accumulation or profit through trade rather than the -the protection of hereditary lands. What was needed were laws that would protect capital and the rights to its accumulation, insure a steady flow of profitable trade goods, and control the problems posed by a growing class of mobile urbanized laborers and artisans, no longer bound to the land, whose livelihoods were dependent upon the vagaries of both national and international trade. By the middle of the fifteenth century the English nobility, and even the crown, was firmly in debt to the mercantile class, and laws that would meet the needs of the powerful mercantile class began to emerge. As capital became more central, it increasingly enjoyed state protection in the form of criminal laws designed to punish those who interfered with what had come to he acceptable -forms of capital accumulation. In sum, during the 300 years preceding the establishment of English colonies in North America, three important innovations were introduced into English law and English legal thought. First, law became an important ally of those seeking to maximize profit through capitalist market relations by defining many acts that disrupted the predictability of market relations as crimes, that is, as harms against the state, rather than as civil violations of contracts between individuals. Second, criminal law came to he seen as an appropriate tool for insuring an adequate supply of cheap labor, first for the agrarian economy and later for the developing industrial-mercantile economy of early capitalist England. Third, and perhaps most importantly for contemporary criminal law, members of the laboring class who turned to theft, violence, idleness, or other forms of deviance as an adaptation to the brutal conditions of their lives were defined as criminals. In so doing the English State absolved the emerging capitalists who profited greatly from the brutal conditions of working class life of all responsibility for the consequences of these conditions. Characterizations of common law Common law's unity has been attributed to the fact that law is grounded in and logically derived from a handful of general principles and

that whole subject-areas such as contract or torts are distinguished by some common principles or elements which fix the boundaries of the subject. The expositions of these general principles and the techniques required to find and to apply them and the rules that they under-pin are largely what legal education and scholarship in the common law tradition are all about. The heart of common law is not in specific decisions or in rules distilled from them but in broad notions which are difficult to unify or systematize but which may indeed in some way he 'he woven into the fabric of life.' Judges interpret and apply the law but do not create it for the law has no individual authors. It is the product of the community grounded in history. Common law follows the doctrine of precedent - the doctrine that judges are hound to treat as binding on them the essential legal grounds of decisions adopted in similar cases previously determined in courts of higher or perhaps equal status. The judge must attach great weight to previous decisions, not only for practical and political reasons (maintaining sufficient certainty in legal doctrine, avoiding usurpation of the legislative function) but also for theoretical reasons. Those decisions provide, in general, the best available evidence of the collective wisdom of the common law. The judge is the privileged representative of the community, entrusted with its collective legal wisdom, which he is authorized to draw upon constructively in order to produce solutions to novel issues raised before the court. The legitimacy of common law resides not in the political system but in the community. The authority of the judge is not as a political decisionmaker certainly not as delegate of the king or parliament) but as representative of the community. Hence, he has authority only to state the community's law, not to impose law upon the community as if he were a political ruler. The community is to be thought of here as something uniting past and present, extending back through innumerable past generations as well as encompassing the present one. Transition to the Colonies: An Example the Due Process Clause Dictionary of the History of Ideas Volume III Philip P. Weiner For the English-speaking peoples it may be that Article 39 of Magna Carta (June 15, 1215) and its subsequent interpretation settled any doubts as to preferment of the accusatorial-adversary procedures. Its language eventually safeguarded the "free man'' from being "in any way ruined ... except by the lawful judgement of his peers or by the law of the land.'' In addition to this general clause, the Great Charter contained other specific procedural ones. However, as James Madison remarked in 1789 when proposing the future Bill of Rights: ''Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carter nevertheless became a sacred text in England and famous as the precursor of the phrase, "due process of law,'' first used by Edward III in a statute of 1354. It was, however, Sir Edward Coke's Second Institute which emphasized the concept and insisted that ''law of the land" meant "due process of law" it thus became a part of the common law and was given a natural-law interpretation and flavor. The American colonial reception and modification of the ideal of due process of law is disclosed in the early charters granted by the Crown, the laws of the colonists, the documents preceding and following the American Revolution, and the various state and federal constitutions. Colonial statues and documents continued the Crown charters; general references but also became more specific. For example, acting under the grant by Charles I in 1629 the Massachusetts colonists agreed ''to frame a body or grounds of laws in resemblance to a Magna Carta," and their 1641 Body of Liberties provided somewhat detailed procedures. The New England Confederation of 1643, The Dutch provisions for New Amsterdam in 1663, and the New York "Charter of Libertyes and Priviledges" of 1683, all provided for a form of due process, and due process was claimed as right by the congress of the Colonies held in New York in 1765. Similarly, the First Continental congress of 1774 resolved that the colonists "are entitled to life, liberty and property ... (and) to the common law of England," and following its suggestion, the colonies promulgated their own Constitutions. The famous Declaration of Rights adopted by Virginia in 1776 included the guarantee "that no man be deprived of his liberty, except by the law of the land, or the judgment of this peers," and with minor changes in language this was the general type of clause used. It was also found in the famous Northwest Ordinance of 1787. The constitutional convention of 1787 discussed briefly and adopted a few procedural rights. In some of the state ratifying conventions, bare majorities were obtained only because of promised amendments.....Of the ten amendments to the American Constitution ratified in 1791, the first eight are generally termed the Bill of Rights. Without the guidance of precedent based an the accumulated wisdom of the past and declared as the basis of decision by the authorized oracle, whether judge or jurist, men, it is said, would have no certainty of the law or confidence in quality before an evenhanded justice. Precedent assists the litigant or his advisor to assess the extent of his rights and duties and restricts the scope of litigation. Nor is it the Party litigant or accused alone that rejects the idea of arbitrary justice. The judge or other law give, unless he claims to speak as the medium of the gods with access to supernatural revelation or as an autocrat, prefers as a rule to show preexisting legal justification for the decision or sentence which he pronounces. Judges of lesser ability and experience may be fortified by the opinions of the most eminent. Moreover, the busiest courts where most justice is administered the machinery would break down if all judges took it on themselves to reexamine, in disregard or precedent, each aspect of every case before them. It is not indolence alone that suggests conformity to established practice. If justice requires that like cases by decided alike, this implies equality before the law, Yet, no more than two men's fingerprints are identical, are all the facts of two legal proceedings. The law itself selects either by general rules or by the individuation of equity what facts are relevant to exclude precedent. Unfortunately as lawyers have come to see, the question whether an earlier is a precedent for the present situation depends on an assessment of essential similarities and differences between the two.

'Adversarial' v 'inquisitorial' proceedings, keyu feature of English system.: adversarial (or accusatorial) nature of the proceedings as contrasted with the inquisitorial nature of civil law systems.


adversarial system: parties dictate, within the constraints of traditional forms and packages - such as writs, forms of action and pleadings - the form, content and pace of proceedings. The pre-trial proceedings are arranged such that by the time of the trial, each side should have gained as much information as possible both to support their own case and to exploit any weaknesses in the opposition's arguments. During the trial, the judge in civil cases and the judge and jury in criminal cases should allow him/herself to be guided, at least initially, as to the relevance of questions of fact and law by the parties' advocates. The judge should take a procedural 'back seat' and intervene only to ensure that fair play is operating - or where the public interest is at stake. success of a case, therefore, often rests upon the ability of an advocate to manipulate proceedings and not just the weight of evidence.


English commentator, Jacob (The Fabric of English Civil Justice: the adversarial system 'introduces an element of sportsmanship or gamesmanship into the conduct of civil proceedings, and it develops the propensity on the part of lawyers to indulge in procedural manoeuvres'.


assumptions of adversarial: both parties are represented the lawyers representing each party are efficient and equally matched the lawyers will promote their clients' interests.


adversarial: But the adversarial system often produces unexpected and, according to some observers, unjust results due to the manner in which evidence can be presented. The outcome, therefore, hinges upon the events of the trial itself as much as the gathering of evidence beforehand, since the courts only judge what is presented before them and, especially when juries are present, the way it is presented. With the exception of the Coroner's Court, proceedings in the English courts do not take the form of investigations into the matters brought before them, unlike the inquisitorial system,