Abstract
The English common law tradition, which encompasses several distinct sub-traditions, is one of the two major legal traditions of the contemporary world. Like the civil law tradition, it too has had a remarkable influence around the world, having been adopted by a large number of countries, including countries that are socially and culturally very different from England. Indeed, the reception of English law in diverse socio-cultural settings is a testimony to its genius and its adaptability, especially where this reception was not imposed but voluntarily embraced. Initially, the reception of English common law was the result of British colonization and the political dominance of the British empire from the eighteenth through the early twentieth century. It was a principle of English law that, in a settled colony, the colonists would bring with them and follow the laws of their home country. Countries such as Australia, Canada (except for Quebec) and New Zealand, which were once part of the British colonial empire, inherited the English common law system and continue to apply its legal philosophy and principles in their current legal systems. Other countries sharing, to a greater or lesser extent, the heritage of the common law include the United States, Ireland, India, Pakistan, Bangladesh, Malaysia, Singapore, Hong Kong, South Africa, Nigeria and Kenya. Much of the law in these countries has its basis in old precedents, stemming from the time when they were part of the British empire, although their legal systems grew apart since these countries became independent. Remarkably, in many of these countries, this uniquely English set of legal sources, institutions and norms co-existed with indigenous cultural, religious and legal traditions, and what may be described as ‘hybrid’ systems often emerged.
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Notes
- 1.
The doctrine of precedent can be interpreted in two ways. According to the first interpretation, the decision of a judge is evidence of the law already in existence before the judge gave his or her decision. If the relevant rule already existed, it is clear that the same rule should be applied in future cases. According to the second interpretation, the judge, in issuing his or her decision, creates a new rule that did not yet exist but would exist and be binding in future cases from the moment the decision is issued. In earlier centuries, the view that judicial decisions were merely evidence of pre-existing law was the fashionable one. As the eighteenth-century English jurist William Blackstone stated, “the decisions of courts of justice are the evidence of what is common law.” Commentaries on the Laws of England, 16th ed., (London 1825, first published in 1765) Vol. 1, 71. In the course of the nineteenth and twentieth centuries, however, the second interpretation, namely that courts’ decisions create law rather than merely state it, became prevalent. This second interpretation is confirmed in the doctrine of stare decisis (Latin for “stand by your decisions”). The custom to decide cases by analogy to previous cases and the application of the doctrine of stare decisis together suggest that common law has developed on the basis of precedents and case law. Common law legal reasoning is therefore a form of case-based reasoning, looking for similarities and differences between new cases and old cases that have already been decided.
- 2.
This code, as preserved, contains ninety brief sections dealing with punishments for various wrongs.
- 3.
This code consisted of 76 sections in the form of ‘dooms’ or penal judgments.
- 4.
This compilation, known as ‘The Laws of King Alfred’, contained about 125 sections in all. It draws on earlier Saxon laws as well as on various biblical sources.
- 5.
Customary law comes into being if particular norms and standards for behavior are traditionally used in a society and are experienced as binding. Customary rules are confirmed if they are actually used in legal decision making.
- 6.
The Norman kings, especially Henry II, sought to expand the scope of royal jurisdiction not only at the expense of local and feudal authorities but also at the expense of the ecclesiastical courts.
- 7.
The word eyre is French and derived from Latin iter: journey. Eyres appear to have existed during the reign of Henry I (1100–1135), but Henry II systematized this practice. In 1166 Henry II appointed earl Geoffrey de Mandeville and Sir Richard de Lucy to tour the country in order to enforce royal law. In 1176 the itinerant judges, who numbered between 20 and 30 at a time, were organized into six circuits.
- 8.
It should be noted that at this time imprisonment was not regarded as a form of punishment.
- 9.
A case would formally set down for hearing at Westminster ‘unless before’ (nisi prius) it came up for trial at Westminster, it had been heard locally. In 1160 Henry II introduced the ‘petty assizes’, comprising a panel of neighbours who ascertained facts with respect to disputes concerning property and other issues. The word ‘assize’ originally denoted a session of a council or court; then it came to signify an enactment made at such a meeting. An assize established trial by inquisition whereupon it became customary to refer to the inquisition of 12 men as an assize. By a series of enactments or ‘assizes’ King Henry II made trial by inquisition available in a diversity of cases. The Assize of Clarendon (1166) provided, among other things, that sworn inquests, comprising a large number of jurors (12 from each hundred and four from each vill), should present to the circuit judges, upon their arrival in a locality, all persons suspected of murder, theft, arson, counterfeiting or of receiving persons who committed such offences. The jurors were subject to fine if they concealed an offence or made a false presentment. The task of the jurors was not to try suspected offenders but to ‘present’ or ‘accuse’ before circuit judges those individuals suspected of crimes. It should be noted here that juries had been known in England since Anglo-Saxon times, when they were used to settle disputes at a local level. A jury was a body of sworn persons summoned to give a formal answer to a question submitted to them concerning a matter of fact, a right or a person in their neighbourhood. Such a formal answer also amounted to a verdict, i.e. a decision on the facts as well as the law. The task of giving a verdict was known as recognoscere and recognitio. Henry II systematized the relevant procedure and expanded the use of recognitions. Thus, whereas previously the juries had met locally, by command of a local official such as a sheriff, henceforth juries were always summoned before royal judges. Furthermore, whereas the recognitio procedure was initially used only to protect royal and other privileged interests, it was now made available to individual plaintiffs who could use it in a number of specified civil actions.
- 10.
Today, it is common to distinguish judge-made case law from customary law as a source of law. However, this distinction has not always been clearly made. The customary character of customary law consists partly in the fact that judges and other adjudicators follow the custom of applying these rules. Customary rules can come into being, or are confirmed, if they are actually used in legal decision making.
- 11.
The Norman curia regis was similar in constitution and function to the Anglo-Saxon witan—the council of the Anglo-Saxon kings.
- 12.
The Exchequer was the Treasury Department of the Monarchy. In the course of tax collecting many disputes would arise over feudal dues owed to the Crown, and it was from decisions given in connection with these disputes that the jurisdiction of the Exchequer gradually emerged.
- 13.
King Henry II appointed five members of his curia regis to hear disputes between the king’s subjects. This measure was probably intended to relieve the curia regis from some of the burden of the judicial work, especially where a case did not affect the king directly.
- 14.
The separation of these three courts from the King’s Council had important consequences. The creation of a stationary royal court, operating independently of the king’s personal presence, marks the beginnings of the separation between the judiciary and other organs of governance. By the thirteenth century the typical justices were no longer the king’s private counsellors and advisers but professional judges employed to administer the law. Yet, medieval judges were considered to be special representatives of the king, whose interests they served. During this era no clear distinction was drawn between the king, the living individual ruler, and the Crown, the impersonal institution of the monarchy.
- 15.
Just as the new royal courts had competed with the local and feudal courts for business in earlier times, so the above-mentioned common law courts competed among themselves because the judges and other officials serving on these courts depended for their incomes on the fees paid by litigants.
- 16.
Reference should be made here to the introduction of law reporting (probably in the thirteenth century). This was a significant development which enabled the opinions and decisions of the courts to be recorded for continued reference. Law reporting made possible the consistent development of the law by means of the doctrine of precedent. Through this doctrine legal rules and principles developed from cases and were applied to situations with similar facts.
- 17.
It should be noted here that in addition to the central courts, there continued to be the local administration of justice within the different communities.
- 18.
See in general, Maitland (1976, first published in 1936).
- 19.
The word ‘writ’ simply denotes a writing and refers to a brief succinct order. The writ, originally an administrative device created by the Anglo-Saxon rulers of England, became under the Norman kings the chief instrument both of administration and legal development. It was King Henry II who ‘judicialized’ the writs and transformed the royal writ to an order addressed to the sheriff to command a defendant to do right in some specified way, or else to appear before the king’s judges to explain why he should not. Accordingly, writs became the principal means of initiating legal proceedings.
- 20.
At the time of Glanvill (late twelfth century) there were about 40 writs, whereas during the reign of Edward I (1272–1307) there were more than 400. By the Provisions of Oxford (1258), the Chancery clerks were prohibited in future from sealing unprecedented writs without the permission of the king’s council.
- 21.
Prior to the introduction of the legal procedure based on writs under King Henry II, legal proceedings in secular courts were entirely oral. The law dispensed was unwritten custom and the doctrine of precedent was unknown. Moreover, judges did not present reasoned judgments and the plea rolls very rarely recorded principles of jurisprudence. Most cases concluded with a jury verdict in which matters of fact and law were intermingled or by combat.
- 22.
A simple illustration of the difficulty caused by this highly technical system can be seen from the following example of writs available for wrongs against chattels: (a) A damages B’s book: writ of trespass to goods; (b) A borrows B’s book for two weeks but then informs B that he will not return the book until six months later: writ of detinue; (c) A borrows B’s book and then sells it to another person: writ of trover. In each of these cases a wrong was done to B’s property. In (a) B’s enjoyment of his property was unjustifiably interfered with; in (b) B was deprived of possession of his property; and in (c) B’s right of ownership was denied. Each writ had its own rules of procedure (e.g., time limits, rules of evidence, hearing requirements, etc.).
- 23.
By the early fourteenth century the judges were appointed from among the senior advocates who argued cases before the royal courts. These advocates, called by different names at different times (serjeants-at-law, barristers), formed together with the judges an elite group of learned lawyers. The development of English law has been conditioned to a considerable extent by the political, economic and intellectual environment of this group.
- 24.
As a commentator has remarked, “it was better said the judges to suffer a mischief in an individual case than the inconvenience which would follow from admitting exceptions to general rules.” Baker (1979), p. 70.
- 25.
The writ system was formally abolished around the middle of the nineteenth century (by the Common Law Procedure Act). However, the common law, as cast in the form of the writs, remains present through case law. The writ system and its formalism may have disappeared, but much of its content and spirit still exists.
- 26.
See de Zulueta (1927).
- 27.
Ranulf de Glanvil (Glanvill or Glanville) served as sheriff of Lancashire and of Yorkshire, as ambassador and as justice in eyre. In 1180 he became Justiciar (Chief Minister of the Crown) at the court of Henry II.
- 28.
In the time of Glanvill, writs were not fixed in number and the king possessed unlimited power to issue new writs.
- 29.
Holdsworth (1938), p. 15.
- 30.
Bracton was one of the king’s justices of the King’s Bench and of the Assizes. Like many other royal judges of that time, he was an ecclesiastic and at the time of his death in 1268 he was Chancellor of the Exeter Cathedral. He was a student of Justice Raleigh, who was responsible for creating several writs.
- 31.
As the basis of his work, Bracton compiled a Note Book in which he collected two thousand cases from the plea rolls of the first 24 years of Henry III’s reign. However, the treatise appears to be unfinished—it ends abruptly during the discussion of the writ of right.
- 32.
As S. E. Thorne observes, “[Bracton] was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind, using them throughout his work, wherever they could be used, to rationalize and reduce to order the results reached in English courts.” See Bracton on the Laws and Customs of England (Cambridge, Mass., 1968), 33.
- 33.
The main body of Bracton’s work is divided into tracts dealing with the principal civil and criminal actions that came before the king’s courts. It is interesting to note that Bracton agreed with Glanvill when he claimed that a king who wished to rule well needed two things: arms and laws. He declared that, although the king was supreme in his realm, his power was derived from law, which should govern all, king and subject alike. Notwithstanding such claims, Bracton recognized the Roman law concepts of necessitas and utilitas publica, which provided rulers with justification to override the law in order to promote or safeguard the public interest.
- 34.
Much about their origins is unclear, but they probably began as hostels (hospicia: inns). By the end of the fourteenth century four principal Inns of Court had emerged: the Inner Temple, the Middle Temple, Gray’s Inn and Lincoln’s Inn.
- 35.
The term ‘barrister’ was not used before the middle of the fifteenth century. It derives from the ‘bar’ or forum on which sat the senior students called upon to argue at the mock courts or moots. Students who did not wish to become barristers, ‘practitioners under the bar’, could become ‘pleaders’, and later ‘equity draftsmen’ and ‘conveyancers’.
- 36.
Once legal training was provided in the Inns of Court, the use of treatises such as those of Glanvill and Bracton declined. The works now in demand were of a practical nature. Such works were written in French—the language used by common lawyers. In addition to these works, which were mainly guides to legal procedure, ‘plea rolls’ were compiled of actual cases decided by the common law courts. Furthermore, Year Books were compiled by individual lawyers, consisting of short reports of significant arguments and rulings in cases noted by those who were present. By about 1400 personal compilations gave way to uniform practical collections of court pleadings and in the first half of the sixteenth century the first ‘private law reports’ made their appearance, in which the practice of citation is firmly established. The most famous of these reports are those of Sir Edward Coke (1552–1634), who is considered to be the greatest jurist of his time.
- 37.
F. W. Maitland has brilliantly related the story of the sixteenth century pressure of Roman law in England in his English Law and theRenaissance (Cambridge 1901, reprinted Union N.J. 2000).
- 38.
This may be explained by the fact that the principles of the common law constituted at the same time principles of the constitution, and to abolish them entirely would have amounted to a revolution rather than a resettlement.
- 39.
See Sect. 9.3 below.
- 40.
The Court of Star Chamber evolved from the king’s Council. In 1487, during the reign of Henry VII, this court was established as a judicial body separate from the Council. The court, as structured under Henry VII, had a mandate to hear petitions of redress. Although initially the court only heard cases on appeal, Henry VIII’s Chancellor Thomas Wolsey and, later, Thomas Cranmer encouraged suitors to appeal to it straight away, and not wait until the case had been heard in the common law courts. In the Court of Star Chamber (as in the Court of Chancery) all questions were decided by the court itself, and the granting or withholding of relief was in the discretion of the court and not regulated by rigid rules of law. The Court of Star Chamber was abolished in 1641, but its better rules were taken over by the King’s Bench and became a permanent part of the law of England.
- 41.
As F. W. Maitland noted, “were we to say that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth.” The Collected Papers of F.W. Maitland (Cambridge 1911), 496.
- 42.
Coke’s famous law reports began to appear in 1600 and comprise 13 volumes. In these the author emphasizes the role of judicial activity in constantly developing and refining the law, declaring its principles and applying them to the matter in hand. Although Coke’s reports fall short of what would now be regarded as accurate reporting, nor do they reveal anything other than a vague notion of precedent, they serve the author’s purpose, namely the defence of the common law, admirably well. Coke asserts that the law the judges declare and apply is unwritten and immemorial, embodying the wisdom of generations—a result not of philosophical reflection but of the accumulations and refinements of experience. What emerges when a judge declares the law is the distilled knowledge of several generations of men, each decision being based on the experience of those before and tested by the experience of those after. Coke regarded the common law as an expression of right reasoning in the service of natural human interests. It followed from this that the common law was fundamental and, as such, it must prevail over any statutory enactment that did not conform with its precepts.
- 43.
In contrast to English law, the law of Scotland was affected by the Roman law-based ius commune to a significant degree. By the close of the Middle Ages, Scotland had a customary law similar to that of England, although considerably less developed. However, unlike its English counterpart, Scottish law remained open to external influences. The most obvious such influence was that of the Church, and it was through the infusion of canon law that Roman law first influenced Scottish law and procedure. Furthermore, knowledge of Roman law was brought to Scotland by students attending continental universities from as early as the thirteenth century. In 1532 a permanent court of professional judges, the Court of Session, was established, which used a version of the Continental Romano-canonical procedure. As far as possible, the court relied on native Scots law, but in cases that could not be addressed on that basis, judges had recourse to the Romanist ius commune. By the close of the sixteenth century, Roman law had infiltrated many aspects of Scottish law and had become one of the dominant characteristics of the Scottish legal system. However, from the beginning of the eighteenth century, especially after the Act of Union in 1707, by which Scotland and England were consolidated into one kingdom, English law began to exercise a strong influence on the law of Scotland, although the close contacts between Scots law and Continental European law continued to exist. It is thus unsurprising that comparative law scholars regard Scots law as an example of a ‘mixed’ or ‘hybrid’ system. See Evans-Jones (1999), p. 605; MacQueen (1999), p. 19; Rodger (1996), p. 1.
- 44.
As H. E. Holdsworth has remarked: “We have received Roman law; but we have received it in small homoeopathic doses, at different periods, and as and when required. It has acted as a tonic to our native legal system, and not as a drug or poison. When received it has never been continuously developed on Roman lines. It has been naturalized and assimilated; and with its assistance, our wholly independent system has, like the Roman law itself, been gradually and continuously built up by the development of old and the creation of new rules to meet the needs of a changing civilization and an expanding empire.” A History of English Law, 7th ed. (London 1956–1966), Vol. IV, p. 293. According to Roscoe Pound, “History has played a decisive part in the development of systems of law more than once. A taught tradition is a decisive element in a system. Two distinct long traditions, the one going back to the Roman jurisconsults of the classical era, the other to the teaching of the law of the King’s Courts by medieval English lawyers, have kept their identity since the Middle Ages. They have put their mark upon the significant features of the respective systems and have set the two systems off as independent however much either may have borrowed from the other at one time or another. Whatever the Continental law borrows it Romanizes…Whatever the Anglo-American law borrows it Anglicizes…From the Middle Ages the Continental lawyer and the English lawyer have had a different bringing up.” “Philosophy of Law and Comparative Law”, (1951) 100 (1) Universityof Pennsylvania Law Review, 1, 1–2.
- 45.
Kitto (2002), at v.
- 46.
Smith (1933), p. 310.
- 47.
Aristotle, Nic. Ethics, Bk. 5, chap. 14.
- 48.
Cicero’s definition of the iuscivile as “the equity constituted for those who belong to the same state so that each may secure his own” (Top. 2. 9.), and the renowned aphorism of the jurist Celsius “ius est ars boni et aequi”: “the ius is the art of the good and just” (Digest 1. 1. 1. pr.), are obviously inspired by the concept of equity as an abstract ideal of justice and as a touchstone of the norms of positive law.
- 49.
Perell (1990), p. 4.
- 50.
According to some commentators, people deliberately employed the common law to achieve unconscionable outcomes. This may not in fact have been the case, however. It seems more likely that unconscionable outcomes were simply the unfortunate result of the strict application of the common law.
- 51.
Certain classes of petitions were however referred to the king’s most important official, the Chancellor. One such class involved cases where the alleged wrongdoer was the King himself such as, for example, where the king had possession of land that had been seized as an escheat (the term escheat refers to the reversion of property to the king or the state in the absence of legal claimants) but in fact the late tenant of the land had left an heir. The common law failed to provide the heir with a means of recovering the land. To recover it, the heir had to petition for it, and such petition was addressed to the Chancellor.
- 52.
14 Ed III St 1 c 5.
- 53.
See Meagher et al. (1984), p. 4.
- 54.
It should be noted that until the nineteenth century the chancellor was the sole judge in the Court of Chancery.
- 55.
From the time of King Henry VI (1421–1471) written answers were allowed, and in the sixteenth and seventeenth centuries a regular course of procedure based on written pleadings was adopted.
- 56.
As stated by Lord Ellesmere in 1615: “The cause why there is a Chancery is for that men’s actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every act and not fail in some circumstances. The office of the Chancellor is to correct men’s consciences for frauds, breach of trusts, wrongs, and oppressions of what nature soever they be, and to soften and mollify the extremity of the law.” Earl of Oxford’s Case (1615) 1 Ch Rep 1; 21 ER 485, at 486.
- 57.
Pollock (1927), p. 43.
- 58.
- 59.
By the time of the Tudors and Stuarts, the Chancellor’s power to give common law remedies had been removed.
- 60.
Heath v Rydley (1614) Cro. Jac. 335; Bromage v Genning (1617) 1 Rolle 368; Throckmorton v Finch (1598) Third Institute 124, 125.
- 61.
(1615) 1 Ch Rep 1; 21 ER 485.
- 62.
Quoted in Smith (1933), p. 315.
- 63.
Gee v Pritchard (1818) 2 Swan 402, 414.
- 64.
Blackstone (1978), p. 429 ff.
- 65.
Brunyate (1936), pp. 18–19.
- 66.
Ibid., at 18.
- 67.
Megarry and Wade (1984), pp. 111–112.
- 68.
This difficulty was remedied by legislation: The Chancery Regulation Act 1862 (25 & 26 Vict., c. 42), also known as Rolt’s Act. Consequently, in an action for specific performance a court of equity could decide whether there was a contract or not. In an action to restrain a trespasser it could determine who had title to the land. Furthermore, in an action for an injunction to prevent an infringement of copyright, the courts of equity could decide whether or not copyright existed.
- 69.
The Chancery Amendment Act, also known as Lord Cairn’s Act of 1858 (21 & 22 Vict., c 27) granted the courts of equity the power to award damages in lieu of or in addition to an injunction or an order for specific performance.
- 70.
This is a prerogative order from a higher court instructing a lower tribunal or other public body to perform a specified public duty relating to their responsibilities, e.g. to deal with a particular dispute.
- 71.
But it was not the case for contracts for the sale of goods, for equity did not provide the remedy of specific performance in respect of such contracts.
- 72.
The Common Law Procedure Acts 1852–1852 and the Chancery Amendment Act 1858.
- 73.
- 74.
As has been pointed out, “The two streams of jurisdiction [that is, law and equity], though they run in the same channel, run side by side and do not mingle their waters.” Browne (1933), p. 18. This approach appears to gain support from the exclusive jurisdictions left to the Queen’s Bench and Chancery divisions. As a matter of fact, the work formerly conducted by the Court of Chancery is exactly that dealt with in the Chancery division. A Chancery case remains something quite different from a common law case, and the same can be said with respect to procedure.
- 75.
“The Place of Equity and Equitable Doctrines in the Contemporary Common Law World”, paper delivered at the Second International Symposium on Trusts, Equity and Fiduciary Relationships, University of Victoria, British Columbia, 20–23 Jan. 1993, at 10.
- 76.
Hansard, 3rd Series, vol. 214, 339.
- 77.
For example, in Australia the position prevails that the doctrines and remedies of equity are clearly distinct from those of the common law. Indeed, some authors call the notion of the fusion of law and equity the ‘fusion fallacy’. See on this matter Meagher et al. (2002), p. 54. In New Zealand, by contrast, the Court of Appeal has adopted the view that, with respect to remedies, it is now settled that equity and the common law are merged. Consider, e.g., Mouat v Clark Boyce [1992] 2 NZLR 559.
- 78.
It should be noted here, however, that the common law has developed to permit some discretion as to the remedy in certain cases. An example arises in the context of the judicial review of administrative action. The common law remedy of certiorari (a remedy in which the High Court orders decisions of lower courts, tribunals and administrative authorities to be brought before it and quashes them if they go beyond the limits of the powers conferred on them or show an error of law on the face of the record) may be denied on the basis of misconduct by the applicant. For example, in the English case of R v Stephens, ex parte Callendar ([1956] CLY 2160, The Times, October 26, 1956) an infant’s application for the writ of certiorari was refused on account of serious misrepresentations in the mother’s affidavit.
- 79.
Goff and Jones (1986), p. 169.
- 80.
As previously noted, equity’s dominance with respect to the concurrent jurisdiction was settled in the Earl of Oxford’s Case.
- 81.
Story (1892), pp. 19–20.
- 82.
The court will only grant such a remedy if the applicant can show that there is imminent danger of a substantial kind or that the injury, if it occurs, will be irreparable.
- 83.
For some examples see Jones (1967), pp. 442–443.
- 84.
See e.g. Pilcher v Rawlins (1872) LR 7 C App 259.
- 85.
A restrictive covenant is an obligation created by deed that curtail the rights of an owner of land. An example is a covenant not to use the land for the purposes of any business.
- 86.
A distinction is drawn between prohibitory injunctions, prohibiting a person from doing or continuing to do a certain act, and mandatory injunctions, ordering a person to carry out a certain act. A person who fails to abide by the terms of an injunction can be found guilty of contempt of court.
- 87.
As a result of the Chancery Amendment Act 1858, s. 2, if the court grants an equitable remedy, it can still decide on damages instead of performance or damages in addition to performance.
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Mousourakis, G. (2019). The Development and Function of Equity in the English Common Law Tradition. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_9
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