ch 4 Historical Development of the Common Law.pptx

this is a presentation made on chapter 4 of guide for legal system and methods and has a detail of the whole chapter. this program is for llb hons from university of London.

1. Historical Development of the Common L aw.

2. The Importance of the historical context. Historical Development of English Law : English law has developed through the common law tradition. It has resisted the trend of organizing law into rational codes. English law remains rooted in historical common law. Impact on Legal Thought in English Law: English law is practical and concrete. It is based on real cases with specific fact patterns . English courts do not consider hypothetical cases or speculate abstractly. Legal development in English law is incremental, evolving from case to case.

3. The Importance of the historical context. Contrast with Civil Law Systems: Civil law systems are constructed theoretically with comprehensive legal principles in codes. English law's historical development differs significantly from civil law systems. Comparison with French Law: French law was influenced by Roman law, particularly the Corpus Juris Civils. France underwent significant political upheaval during the French Revolution, leading to the creation of the Code Civil in 1804. England did not experience a similar period of radical political, social, and legal change. Influence on Legal Development: In England, legal practitioners had the greatest influence on legal development, resulting in a practical and concrete legal system. In France, legal scholars and teachers influenced the law, leading to the development of more abstract legal principles.

4. The development of the common law. Origins of English Common Law: The modern development of English common law can be traced back to the time of William the Conqueror's invasion of England in 1066. Before the Norman Conquest, England had no unitary, national legal system. It relied on a variety of oral customary rules that varied by region. Each county or shire had its own local court with its own customs, enforced by local lords or landowners. These courts were not like modern courts. Foundation of the Legal System: William the Conqueror recognized the need for a centralized legal system to exert power and control. He established the Curia Regis, also known as the King's Court, which included the King and his advisers, consisting of powerful landowners and clerics. The King's Court traveled around the country, allowing citizens to bring grievances for judgment, laying the groundwork for the common law system.

5. The development of the common law. Role of Henry II: Henry II, who became king in 1154, played a crucial role in developing the common law. He aimed to create a single system of justice for the entire country under royal control. To achieve this, Henry ordered judges to travel to different parts of the country, known as the 'travelling justices,' to decide cases using laws developed in Westminster. This effort replaced local laws with new national laws, forming the common law . Formation of Precedent: Over time, decisions made by the judges were recorded and published. Past decisions (precedents) began to be cited as authoritative references in arguments before the courts, establishing a system of legal precedent in the common law.

6. The contribution of common law to social order. Preventing Bloodshed and Recognizing Rights: During the time when the foundations of the common law were being laid, the primary focus of the law was to prevent bloodshed by recognizing and protecting rights to property and personal freedom . The Role of Vendettas: Prior to the 12th century, vendettas (blood feuds) were a common and integral part of English life, often resulting in violent conflicts between individuals or families. Establishment of King's Courts: The establishment of the King's Courts in the 12th century coincided with the decline of vendettas. These courts not only punished criminals but also provided a peaceful means of resolving disputes over land and property .

7. The contribution of common law to social order. Resolution of Disputes and Social Order: The courts played a critical role in resolving disputes related to land, contracts, debts, and criminal offenses. Instead of resorting to violence, individuals could bring their cases before a judge, who would rule on the rights and wrongs of the matter and provide a remedy. Supporting Social Order: The courts contributed to maintaining social order and the tranquility of the state by offering a legal alternative to violent resolution of conflicts. Access to Justice: The importance of having access to the courts is emphasized, as the denial of such access may lead some individuals to take the law into their own hands, similar to the concerns faced by Henry II eight centuries ago.

8. The development of Equity Definition of 'Equity ': - In a wider sense, "equity" means fairness or justice. - In a legal context, "equity" refers to legal rules developed by the courts to address the inflexibility of common law rules and procedures. Challenges in Common Law Courts (15th Century ): - By the 15th century, common law court procedures had become slow, expensive, and highly technical. - Common law courts lacked satisfactory remedies for certain situations. The Role of the King and the Chancellor : - Citizens would petition the King to "redress their grievances," seeking direct remedies for their complaints. - The King initially handled these petitions but later delegated them to the Chancellor, who established the Court of Chancery to address matters based on moral considerations rather than precedents.

9. The development of Equity Development of Equity: - Equity created new legal rights, such as recognizing trusts and providing beneficiaries with rights against trustees. - It also introduced new remedies beyond monetary compensation, including specific performance (enforcing contracts) and injunctions (ordering a person to stop certain actions). Criticism and Reform (19th Century ): - The Court of Chancery faced criticism in the 19th century due to its expensive and time-consuming procedures. - Charles Dickens' novel "Bleak House" criticized the Court of Chancery's practices. Combination of Common Law and Equity (Judicature Acts 1873–75 ):

10. The development of Equity Combination of Common Law and Equity (Judicature Acts 1873–75): - In 1873, the Judicature Acts merged common law courts and courts of equity. - Previously, equity and common law operated separately, but it was established that equity would prevail in case of a conflict (Earl of Oxford’s Case, 1615). Current Status of Equity : - The Chancery Division of the High Court continues to deal with equity-related matters, such as company law, property, wills, and probate. - All courts now apply both common law and equitable principles and remedies. Equity's Contribution : - Equity has added new principles and remedies to the common law, providing solutions for individuals who have suffered injustices. These points outline the historical development of equity within the English legal system, its role in addressing issues with common law, and its continued influence in modern legal proceedings.

11. constitutional background to the common law. 1:Rule of Law : - The rule of law is a fundamental constitutional principle that ensures that all individuals and entities, including the government, are subject to and accountable under the law. - When studying the legal system, one assesses the extent to which institutions and processes adhere to the rule of law. This principle ensures that laws are applied consistently and fairly. 2.Separation of Powers : - The principle of separation of powers divides governmental responsibilities among three branches: the legislative, executive, and judicial. - Changes in the operation of the judiciary, such as the creation of the UK Supreme Court, can be driven by the need to maintain a clear separation of powers within the legal system.

12. constitutional background to the common law. 3.Parliamentary Sovereignty: Parliamentary sovereignty is a fundamental constitutional principle in the UK, which asserts that Parliament is the supreme legal authority. - One crucial area of focus in the study of constitutional law is the balance between the responsibilities of judges and Parliament, especially concerning cases concerning the Human Rights Act 1998. This involves examining how the legal framework manages this tension while maintaining constitutional ideals. 4. Legal Framework and Statute : - Constitutional principles often find expression in legal statutes and frameworks. For example, Section 1 of the Constitutional Reform Act 2005 explicitly references the principle of the rule of law and the Lord Chancellor's role in relation to it. - Studying these statutes and legal frameworks provides insights into how constitutional principles are codified and operationalized within the legal system. 5 . Assessment of the Legal System : - Constitutional principles provide a framework for assessing the legal system's effectiveness, fairness, and adherence to democratic values. - Students and scholars of law use these principles as a lens through which they can critically evaluate the functioning of legal institutions, the behavior of government actors, and the impact of legal decisions on individual rights and liberties.

13. The British Constitution Constitutional Definitions: A country's constitution refers to the way it is governed and how power is organized and distributed. Many countries, such as the USA, Germany, India, and South Africa, have written constitutions that outline governance rules in a single document with stringent protections against changes. In the UK, there is no single written constitution. Instead, constitutional rules are scattered across written and unwritten materials. UK's Unwritten Constitution: The UK's constitution has developed over centuries and is found in statutes, common law, customs, and constitutional conventions. Constitutional conventions are widely recognized practices that have become unwritten rules. The UK Constitution is partly written (in statutes and common law) but is mostly "uncodified ."

14. The British Constitution Comparison with Written Constitutions: Comparisons are made with countries like Germany, which has a written constitution called the Basic Law ( Grundgesetz ). The German constitution is codified and available for citizens to read, including sections on basic rights and state organization. Written constitutions are seen as comprehensive but may be less flexible and harder to amend. Advantages and Disadvantages: Advantages of the UK's unwritten constitution include flexibility and adaptability to changing circumstances. The downside is that it may be easier for the state to abuse its powers and infringe on citizens' rights. Written constitutions offer clarity and comprehensiveness but can be difficult to amend and may not keep up with modern society's needs.

15. Constitutional principles  three of the most important principles are: P arliamentary sovereignty S eparation of powers R ule of law.

16. Parliamentary Sovereignty - Parliamentary sovereignty is a foundational principle of the unwritten constitution in the UK. - It grants Parliament the status of being the supreme legal authority in the country, with the power to create or repeal any law. Pros - Parliament can make or unmake any law as it sees fit, although it may still face political constraints. - There is no distinction between 'ordinary' and 'constitutional' laws; all statutes are passed in the same manner. Cons - The legality of an Act of Parliament cannot be challenged in any court. - Courts cannot declare statutes to be invalid, which is different from some other jurisdictions where legislation can be ruled invalid if it contradicts the constitution.

17. PARLIAMENTARY SOVEREIGNITY Origins and Influence : - The orthodox view of parliamentary sovereignty was formulated by British constitutional theorist Albert Venn Dicey in the 1880s. - This view has been a fundamental concept in the UK's legal system. Challenges to Traditional View : - Over time, legal developments have challenged the traditional conception of parliamentary sovereignty. The courts have categorised some legislation as "constitutional statutes," indicating that there is a hierarchy of Acts of Parliament. Precedence over Common Law : - Any law passed by Parliament takes precedence over common law. - In cases of conflict between statute and common law, the statute prevails, effectively overruling the pre-existing common law. In summary, parliamentary sovereignty establishes Parliament as the highest legal authority in the UK, with the power to create or change any law. While it has been a long-standing principle, recent legal developments, such as the classification of constitutional statutes, have introduced nuances to this traditional concept.

18. Parliament's Authority Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution . Parliamentary sovereignty and the UK constitution People often refer to the UK having an 'unwritten constitution' but that's not strictly true. It may not exist in a single text, like in the USA or Germany, but large parts of it are written down, much of it in the laws passed in Parliament - known as statute law. Therefore, the UK constitution is often described as 'partly written and wholly uncodified'. (Uncodified means that the UK does not have a single, written constitution .) In summary, parliamentary sovereignty establishes Parliament as the highest legal authority in the UK, with the power to create or change any law. While it has been a long-standing principle, recent legal developments, such as the classification of constitutional statutes, have introduced nuances to this traditional concept.

19. Separation of powers Centers of Power in the Modern State: In the modern state, there are three main centers of power: the legislature (responsible for making new laws), the executive (responsible for implementing the law and governing the country), and the judiciary (responsible for determining legal disputes and interpreting legislation). Purpose of Separation of Powers: The separation of powers is based on the idea that dividing power among these three branches prevents the concentration of too much power in any one body or individual. It provides a system of "checks and balances," ensuring that each branch can monitor and restrain the actions of the others. Historical Origin: The idea of the separation of powers can be traced back to the French political thinker Montesquieu in 1748. Montesquieu argued that the merging of legislative and executive functions into one person or body compromises liberty. The maintenance of liberty depends on the separation of powers . Roles of Each Branch: The judiciary plays a crucial role in checking that the executive branch governs according to the law and does not exceed its lawful powers .

20. Separation of powers While the legislature creates new laws, the judiciary is responsible for interpreting and applying those laws independently of the executive and legislative branches. Legal Changes under CRA 2005: The Constitutional Reform Act 2005 (CRA 2005) in the UK aimed to strengthen the formal separation of powers. It established a separate Supreme Court, replaced the Lord Chancellor with the Lord Chief Justice as the head of the judiciary, and introduced safeguards for judicial independence. International Recognition: The separation of powers principle is recognized in other legal jurisdictions, such as the USA and Germany. In the USA, an elaborate system of checks and balances exists to limit the powers of each branch and enable them to control the exercise of power by the others. In Germany, the Basic Law implies the separation of powers, affecting the operation of the legal system, including restrictions on dual roles in government and the judiciary. In summary, the separation of powers is a fundamental constitutional principle that ensures a balance of power among the three branches of government, preventing any one branch from becoming too powerful and maintaining the rule of law and individual liberties. It is a concept recognized and implemented in various legal systems around the world.

21. Parliamentary Sovereignty and The Judiciary In the United Kingdom, the principle of parliamentary sovereignty is a fundamental aspect of the country's legal system. This principle holds that Parliament, as the supreme legislative body, can make or repeal any law, and no other body, including the judiciary, can challenge or overrule its decisions . However, this does not mean that the judiciary has no role in interpreting and applying the law . H ow the judiciary interprets and deals with laws passed by Parliament in the UK : Interpretation of the Law: When a new law is passed by Parliament, it is typically written in the form of a statute or an Act of Parliament. The judiciary's role is to interpret and apply the law. Judges are responsible for interpreting the language and provisions of the law in cases brought before them. They must determine what the law means and how it applies to the specific facts of a case .

22. Parliamentary Sovereignty and The Judiciary Presumption of Parliamentary Intent: The majority of the time, courts assume that Parliament intended for its legislation to be obeyed and applied exactly as stated. Judges strive to interpret the law in a way that is consistent with the purpose of Parliament as stated in the statute's language. Case Law and Precedent : These decisions help clarify and refine the interpretation of laws. Courts often consider past judgments and legal principles established in earlier cases to guide their interpretation . Judicial Review : While Parliament is sovereign and can pass any law it wishes, there are limitations on its powers. One of these limitations is the principle of legality. The judiciary can engage in judicial review to ensure that laws passed by Parliament are consistent with the Constitution and do not violate fundamental rights. If a law is found to be unconstitutional or in violation of fundamental rights, the courts can declare it invalid or strike it down . Declarations of Incompatibility : In some cases, the courts may issue a "declaration of incompatibility" if they believe that a law passed by Parliament conflicts with the UK's obligations under the European Convention on Human Rights. While this does not invalidate the law, it sends a signal to Parliament that it should consider amending the law to bring it into compliance with human rights standards .

23. Parliamentary Sovereignty and The Judiciary It's important to note that the judiciary in the UK does not have the power to strike down laws simply because they disagree with them. The principle of parliamentary sovereignty means that Parliament remains the supreme authority in making and changing laws. However, the judiciary plays a critical role in ensuring that laws are interpreted and applied in accordance with legal principles and constitutional rights. In summary, while the UK Parliament is sovereign and has the highest authority in making laws, the judiciary has a crucial role in interpreting and applying those laws, ensuring their compatibility with the Constitution and human rights, and establishing legal precedent through its decisions.

24. R ule of law Rule of Law Definition: The rule of law is a critical constitutional concept that constrains the exercise of arbitrary power within a well-functioning state. There is no single, universally accepted definition of the rule of law, and it has been defined differently by various legal thinkers. Basic Principles: At its core, the rule of law includes the following principles: Citizens can only be punished if proven to have breached a law in court to prevent arbitrary punishment. No one is above the law, and everyone is equal before it, irrespective of social, economic, or political status. Albert Venn Dicey's Three Parts of the Rule of Law: Dicey, a British constitutional theorist from the 19th century, conceptualized the rule of law as having three parts: Punishment for specific breaches established by ordinary courts following proper procedures. Equality before the law, including among societal hierarchies. Constitutional principles as a product of common law. Contemporary Formulation by Lord Bingham :

25. R ule of law Lord Bingham, an influential English judge, offered a contemporary formulation of the rule of law in 2006. His key principle is that all persons and authorities within the state should be bound by and entitled to the benefit of publicly made laws, administered in the courts. Lord Bingham outlined eight essential "ingredients" of the rule of law, focusing on the form and content of the law: Accessibility, intelligibility, clarity, and predictability of the law. Resolution of legal rights and liabilities through the application of law rather than discretion. Equal application of laws to all, except when objective differences justify differentiation. Adequate protection of human rights by the law. Accessible and efficient means for resolving civil disputes. Reasonable and lawful exercise of powers by ministers and public officers. Fair adjudicative procedures provided by the state. Compliance of the state with its international law obligations. In summary, the rule of law is a fundamental concept in constitutional law, encompassing principles that ensure legal fairness, equality, protection of human rights, and adherence to the law by all individuals and authorities within the state. Different legal thinkers and jurists have offered various interpretations and formulations of this concept over time.

26. The importance of the rule of law Significance of the Rule of Law: The rule of law is considered a fundamental framework of rules and rights that enables prosperous and fair societies. It ensures that no one, including the government, is above the law, protects fundamental rights, and provides accessible justice for all. Weak rule of law can result in issues like failure to deliver healthcare, unchecked criminal violence, unequal application of laws, and hindered foreign investments. Strengthening the rule of law is a major goal for governments, donors, businesses, and civil society organizations worldwide. Four Universal Principles of Rule of Law: The World Justice Project defines rule of law systems based on four principles: Accountability of government, officials, individuals, and private entities under the law. Clear, publicized, stable, just, and evenly applied laws that protect fundamental rights. An accessible, fair, and efficient process for enacting, administering, and enforcing laws. Timely delivery of justice by competent, ethical, and independent representatives and neutrals. Rule of Law Challenges :

27. The importance of the rule of law Some modern legal scholars argue that the concept of the rule of law has become overly vague and encompassing, potentially losing its real meaning. Maintaining a clear analytical separation between the rule of law, democracy, human rights, and other societal values is essential. Compliance with the rule of law does not guarantee a perfect society but is a necessary element of good governance. Impact on Legal Systems: The text emphasizes the importance of examining legal systems, such as the English civil and criminal justice systems, in light of rule of law standards. Changes to legal aid and access to justice are cited as examples of how constitutional principles affect the legal system. Striving to achieve rule of law objectives can guard against arbitrary government and defective justice systems, even if complete compliance is not yet achieved. Lord Bingham's Perspective: Lord Bingham highlights that the concept of the rule of law is not fixed and may vary among countries. He considers it a unifying factor in a world divided by differences and emphasizes its importance for good governance and peace. In summary, the rule of law is a vital concept that underpins prosperous and fair societies, ensuring accountability, equal treatment, and accessible justice. While the definition may vary, adherence to rule of law principles is crucial for good governance and peace globally, even if challenges and variations exist among different societies.

28. JUDICIAL INDEPENDENCE Importance of an Independent Judiciary: An independent judiciary is essential for upholding the rule of law and ensuring a fair trial. Judicial independence, both at the individual and institutional levels, is crucial for judges to adjudicate disputes impartially, based on the law and evidence, without external pressure or influence. Bangalore Principles of Judicial Conduct: The Bangalore Principles of Judicial Conduct, adopted in 2002, provide a widely accepted code of conduct for judges globally. These principles emphasize the significance of judicial independence and its role in guaranteeing a fair trial. Definition of Judicial Independence: Judicial independence means that judges and the judiciary as a whole decide cases according to the law, free from interference by the executive and separate from the legislature. No external entity, including the government, pressure groups, individuals, or other judges, should interfere with how judges conduct cases and make decisions. Judges must remain impartial and independent from all external pressures and each other, ensuring public confidence in the judiciary and the proper functioning of the justice system .

29. Judicial independence Debate and Accountability of the Judiciary: There is ongoing scholarly debate about the boundaries of the judiciary's role in interpreting legislation, developing common law, and dealing with political issues, particularly in relation to the Human Rights Act 1998. Questions regarding the extent of judicial accountability alongside independence are raised. Increasing Role of the Judiciary: The role of the judiciary in disputes between citizens and the state has grown due to increased governmental functions, necessitating the protection of judicial independence. The judiciary must safeguard citizens against unlawful government actions. Statutory Protection of Judicial Independence (CRA 2005): The Constitutional Reform Act 2005 (CRA 2005) introduced statutory protection for judicial independence. Section 3 of the CRA 2005 requires the Lord Chancellor, other ministers of the Crown, and those responsible for matters related to the judiciary or the administration of justice to uphold judicial independence. Specific duties under Section 3 include not seeking to influence judicial decisions through special access and ensuring the judiciary has the necessary support to perform their functions. In summary, an independent judiciary is a fundamental element of the rule of law, essential for upholding justice and ensuring that judges make decisions impartially, based on the law. This independence is protected by various principles, guidelines, and statutory provisions to maintain public confidence in the judiciary and its role in the legal system.