4: HISTORICAL AND CONSITUTIONAL BACKGROUND TO
COMMON LAW
LEARNING OUTCOMES
Describe the historical development of the legal system
Explain the importance of the historical development of English law
Outline the fundamental principles of the Constitution
Explain the essential requirements of the rule of law
Explain the importance of judicial independence to the rule of law
HISTORICAL DEVELOPMENT OF THE LEGAL SYSTEM
MODULE GUIDE
o The development of English Common law dates back to the time OF
WILLIAM THE CONQUEROR who invaded England in 1066.
o Before the Norman Conquest of England in 1066 there was no unitary
national legal system.
o It involved a mass of oral customary rules varying according to region.
o Every county or shire had its own local court that dispenses its own justice in
accordance with local customs in an arbitrary fashion by local lords or
landowners.
o These are not what we recognize as courts today.
o William laid the foundations of the legal system as he knew in order to
exercise real power, he needed a central system of justice.
o This involved the king having control and having laws that would be obeyed.
o This was done by creating the Curia Regis, Kings court.
o It was a court of law but also a royal household comprising the King and his
advisers.
o The king and his court travelled around the country and citizens would bring
their grievances to be considered by the King and his advisers after which
judgement would be given.
o The most important contributor was HENRY II who came to the throne in
1154 after a long period of disruption and civil war.
o He took the throne to regain stability by reforming land law and dealing with
rampant crime.
o He focused on creating a single system of justice for the entire country
under the control of the king.
o 18 Judges available, and in 1166, five would remain in Westminster and the
rest would be “travelling justices”.
, o They would travel around the country and hear grievances, complaints and
accusations, apply the law developed by the Westminster judges adn give
the solution.
o Local laws were then replaced by new national laws that were common to
all.
o The decisions of judges were then written down. They were recorded and
published and developed a system of precedent.
EQUITY
o The term “equity” refers to fair or just.
o But its legal meaning refers to legal rules that were developed by the courts
to overcome some of the inflexibility of rules and procedures of common law
courts.
o By the 15th century common law courts were slow, expensive and technical.
o Sometimes remedies were useless as it was usually monetary
compensation. Hence the remedies were not so satisfactory.
o Citizens petitioned the King to redress their grievances, meaning pleading
with him directly to hear complaints and provide a remedy.
o There was a time when the King dealt with them himself but later, he passed
them to his senior legal adviser, the Chancellor, as the keeper of the king’s
conscience.
o He eventually set up a special court, the Court of Chancery, to deal with
these petitions.
o This developed a court of equity different from common law.
o Later on, they developed remedies such as specific performance.
o By the 19th century there was criticism in the court of chancery.
o In 1873 common law courts and courts of equity were combined from the
Judicature Acts. Before this equity and common law had coexisted.
o However, judicature act did not change the fact that equity and common law
systems are different.
o Even though a high court division is still called the chancery division, all
courts now deal with both common law and equitable principles and
remedies.
o Earl of oxford case: Equity takes precedence over common law. (1615)
o Injunctions and specific performance are now available in courts. This can be
ordered by a court where monetary compensation is not sufficient.
o Equitable maxims are useful, that originate from equity.
COMMON LAW
LEARNING OUTCOMES
Describe the historical development of the legal system
Explain the importance of the historical development of English law
Outline the fundamental principles of the Constitution
Explain the essential requirements of the rule of law
Explain the importance of judicial independence to the rule of law
HISTORICAL DEVELOPMENT OF THE LEGAL SYSTEM
MODULE GUIDE
o The development of English Common law dates back to the time OF
WILLIAM THE CONQUEROR who invaded England in 1066.
o Before the Norman Conquest of England in 1066 there was no unitary
national legal system.
o It involved a mass of oral customary rules varying according to region.
o Every county or shire had its own local court that dispenses its own justice in
accordance with local customs in an arbitrary fashion by local lords or
landowners.
o These are not what we recognize as courts today.
o William laid the foundations of the legal system as he knew in order to
exercise real power, he needed a central system of justice.
o This involved the king having control and having laws that would be obeyed.
o This was done by creating the Curia Regis, Kings court.
o It was a court of law but also a royal household comprising the King and his
advisers.
o The king and his court travelled around the country and citizens would bring
their grievances to be considered by the King and his advisers after which
judgement would be given.
o The most important contributor was HENRY II who came to the throne in
1154 after a long period of disruption and civil war.
o He took the throne to regain stability by reforming land law and dealing with
rampant crime.
o He focused on creating a single system of justice for the entire country
under the control of the king.
o 18 Judges available, and in 1166, five would remain in Westminster and the
rest would be “travelling justices”.
, o They would travel around the country and hear grievances, complaints and
accusations, apply the law developed by the Westminster judges adn give
the solution.
o Local laws were then replaced by new national laws that were common to
all.
o The decisions of judges were then written down. They were recorded and
published and developed a system of precedent.
EQUITY
o The term “equity” refers to fair or just.
o But its legal meaning refers to legal rules that were developed by the courts
to overcome some of the inflexibility of rules and procedures of common law
courts.
o By the 15th century common law courts were slow, expensive and technical.
o Sometimes remedies were useless as it was usually monetary
compensation. Hence the remedies were not so satisfactory.
o Citizens petitioned the King to redress their grievances, meaning pleading
with him directly to hear complaints and provide a remedy.
o There was a time when the King dealt with them himself but later, he passed
them to his senior legal adviser, the Chancellor, as the keeper of the king’s
conscience.
o He eventually set up a special court, the Court of Chancery, to deal with
these petitions.
o This developed a court of equity different from common law.
o Later on, they developed remedies such as specific performance.
o By the 19th century there was criticism in the court of chancery.
o In 1873 common law courts and courts of equity were combined from the
Judicature Acts. Before this equity and common law had coexisted.
o However, judicature act did not change the fact that equity and common law
systems are different.
o Even though a high court division is still called the chancery division, all
courts now deal with both common law and equitable principles and
remedies.
o Earl of oxford case: Equity takes precedence over common law. (1615)
o Injunctions and specific performance are now available in courts. This can be
ordered by a court where monetary compensation is not sufficient.
o Equitable maxims are useful, that originate from equity.
