Historical development
of the law
Learning outcomes
By the end of this chapter you should be able to:
1 Understand the functions of law
2 Understand English legal history and the development of common law
3 Understand the nature and role of equity and how it relates to the common law
4 Understand the impact of the Judicature Acts
1
,Introduction
The law is a dynamic and organic system that evolves from day to day. Although development
looks to the future, the historical development of the English legal system is not a subject that is
relevant only to historians. The law that we have today is a by-product of a long history of legal
development. A sound understanding of this is not only important from a descriptive point of view,
in that it enables us to state, as a matter of fact, how we have the law as we know it today; it is
also vital at a deeper level, from a prescriptive point of view. By knowing how the law developed
historically, it puts us in a position to form well-informed opinions as to whether the state of the
law and our understanding of it should be as it is currently is, and if not, how we ought to develop
or change the law. By looking back, we can learn much about how to move forward.
1.1 Law in a Changing Society
Imagine an island with only one inhabitant, which no one else ever visits. There would be no need
for any laws in that island, for the very simple reason that governing the conduct of that inhabitant
does not achieve any aim. To put it simply, law is a body of rules and regulations framed for the
orderly conduct of society. To be credible, and thus enforceable, these rules must reflect the
wishes or tolerance of the broad majority of the population. The law is therefore constantly
evolving to reflect the changing patterns of society: sometimes leading the way, sometimes
following.
There are many functions that the law plays. Among others, it maintains the peace and safety in
a society; it regulates the relationships between persons and/or entities; it protects human rights
and liberties; and it ensures the smooth running of economic and political activities. While
retaining these functions, the law must develop in line with societal changes in order to remain
relevant to those under the law.
1.2 The Stages of Development
In general, English law has developed free from outside influence. This development can be
divided into four broad periods.
1. Pre-1066 (Norman conquest) – the locally-based systems and customs of the Anglo- Saxon
society.
2. 1066-1485 (Tudor accession) – the formation of common law and its imposition over and
above local systems and customs.
3. 1485-1832 – the development of equity.
4. 1832 to the present day – the modern period comprising:
• The fusion of common law and equity
• The massive development in statute law
• The intervention of governmental and administrative bodies
• The influence of Europe
2
,1.3 Pre-1066
Following the departure of the Romans from Britain in the 5th century A.D., England entered the
Dark Ages during which all vestiges of Roman presence disappeared. At this time England was
a tribal country, split into different areas which developed into kingdoms, each of which had its
own rules for keeping order.
Little is known of Anglo-Saxon law, primarily owing to the large number of its different individual
local sources. They tended to be handed down orally and few written records exist today. Those
laws of which we know something about regulated only very limited aspects of society. It is also
doubtful whether they bear any relationship to the law as we know and understand it today.
By the 10th century the country had become a single kingdom. It was divided into Shires, which
were further sub-divided into 'Hundreds' (in the South and Midlands) and 'Warpentakes'
(elsewhere). Each of these had its own independent assemblies called moots which, amongst
other functions, acted as local courts. Despite some attempts (by rulers such as King Alfred) to
create a unified national system of law, these moots still acted on the basis of local rules and
customs.
Each locality had different customs which formed the basis of the law that was administered by
the local moots. For example, the ancient custom of Borough English, found in Nottingham and
places in Sussex and Surrey, stated that where a landowner died intestate (i.e. without having
made a will) the land passed to the youngest son instead of the eldest son. In Kent, however, the
custom of Gavelkind provided for the land to pass on intestacy to all the deceased's sons equally.
Some local customs still continue to have legal force today, although this is now rare.
1.4 1066 - 1485
In 1066, the Norman French Duke William defeated the Saxon King Harold II at the Battle of
Hastings. After the Norman Conquest, the prevailing localised legal system slowly but surely gave
way to a general law of the country. There was no sudden sweeping change as a result of the
Conquest. William I and his successors did not seek to alter anything in the new Kingdom that
worked and ensured order. The existing system of regular Shire Courts and Hundred Courts
persisted. However, what the Norman Conquest did bring to England was a strong and centralised
administrative organisation and therefore a completely new system of national government.
England was no longer a tribal country; instead it became a feudal nation.
1.4.1 Development of the King's Courts
Following the Norman Conquest and the imposition of the new feudal system, it became possible
to dispense centralised justice, with the King as the central body. Initially, the King exercised only
'High Justice', that is, his personal power, in a very limited number of disputes. Generally, this
was in cases where the monarch was personally affected, and where the usual localised form of
justice would not work. As such the King's Court, the Curia Regis (King's Council), was available
only to the highest-ranking persons in the country. This, together with the limited jurisdiction of
the King's Courts, meant that they were able to co-exist with the local courts.
The King was aided in the administration of justice by a group of semi-professional skilled clerics
who were part of the royal entourage. These clerics eventually took on the function of deciding
disputes themselves. They became autonomous from the King and established themselves at
Westminster. The establishment of a fixed King's Court was required by the Magna Carta in 1215.
The King's Council gradually developed and different 'branches' of the court evolved to deal with
different types of dispute.
3
, The Three Courts
From the King's Council, there first developed the Court of Exchequer, dealing with royal finances.
Then, there was the Court of Common Pleas, dealing with the owner possession of land. Later,
the Court of King's Bench emerged, dealing with serious criminal matters. These courts remained
until the Judicature Act 1873.
Assizes
To make provision for the administration of law outside London, royal justices were despatched
to the provinces with a royal commission to hold 'assizes' (or sittings) of the royal courts. Initially
the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil
matters. Assize Courts continued until the enactment of the Courts Act 1971.
Other Courts
At four different periods in history, there existed a court known as the Court of Exchequer
Chamber. Its function was appellate (dealing with appeals) and the last court was abolished in
1875, when its jurisdiction was transferred to the Court of Appeal.
1.4.2 The Common Law
With time, the King's Courts became essential to the resolution of disputes between citizens. The
law which the King's judges applied was based upon the common customs of the country, hence
the term 'common' law. This particularly followed the establishment of the first assizes by King
Henry II, to deal with the legacy of a lengthy civil war involving his predecessor, which provided
the opportunity to apply the law of the King's Courts countrywide. The growth of the new system
depended upon the growth of the King's Courts and the eventual establishment of their
ascendancy over the local courts. This did not come easily.
The expansion of the King's Courts was resisted by the local barons who saw it as a threat to
their power, which was often exercised through the local courts. Nevertheless, the growth of the
new system continued. It was firmly in place and recognised as supreme over the local courts by
the time of the reign of Edward I.
It is useful to observe the different meanings of the term 'common law' and to identify which
meaning the term bears in the particular context in which it is used. The term 'common law' may
be used:
1. In the historical sense, to distinguish the law as applied by the King's judges as opposed to
the law as applied by the local customary court;
2. To distinguish the law as applied by the King's Courts as opposed to the rules of Equity, a
system developed by the separate Court of Chancery;
3. To distinguish the whole of case law – that is, law as developed through the system of
precedent – as opposed to statute law; and
4. To identify the law as applied by common law countries (such as Commonwealth
jurisdictions to which the English legal system was exported) as opposed to the law as
applied by civil law countries where the law is based on Roman law (as applied, for instance,
in most of mainland Europe).
4
of the law
Learning outcomes
By the end of this chapter you should be able to:
1 Understand the functions of law
2 Understand English legal history and the development of common law
3 Understand the nature and role of equity and how it relates to the common law
4 Understand the impact of the Judicature Acts
1
,Introduction
The law is a dynamic and organic system that evolves from day to day. Although development
looks to the future, the historical development of the English legal system is not a subject that is
relevant only to historians. The law that we have today is a by-product of a long history of legal
development. A sound understanding of this is not only important from a descriptive point of view,
in that it enables us to state, as a matter of fact, how we have the law as we know it today; it is
also vital at a deeper level, from a prescriptive point of view. By knowing how the law developed
historically, it puts us in a position to form well-informed opinions as to whether the state of the
law and our understanding of it should be as it is currently is, and if not, how we ought to develop
or change the law. By looking back, we can learn much about how to move forward.
1.1 Law in a Changing Society
Imagine an island with only one inhabitant, which no one else ever visits. There would be no need
for any laws in that island, for the very simple reason that governing the conduct of that inhabitant
does not achieve any aim. To put it simply, law is a body of rules and regulations framed for the
orderly conduct of society. To be credible, and thus enforceable, these rules must reflect the
wishes or tolerance of the broad majority of the population. The law is therefore constantly
evolving to reflect the changing patterns of society: sometimes leading the way, sometimes
following.
There are many functions that the law plays. Among others, it maintains the peace and safety in
a society; it regulates the relationships between persons and/or entities; it protects human rights
and liberties; and it ensures the smooth running of economic and political activities. While
retaining these functions, the law must develop in line with societal changes in order to remain
relevant to those under the law.
1.2 The Stages of Development
In general, English law has developed free from outside influence. This development can be
divided into four broad periods.
1. Pre-1066 (Norman conquest) – the locally-based systems and customs of the Anglo- Saxon
society.
2. 1066-1485 (Tudor accession) – the formation of common law and its imposition over and
above local systems and customs.
3. 1485-1832 – the development of equity.
4. 1832 to the present day – the modern period comprising:
• The fusion of common law and equity
• The massive development in statute law
• The intervention of governmental and administrative bodies
• The influence of Europe
2
,1.3 Pre-1066
Following the departure of the Romans from Britain in the 5th century A.D., England entered the
Dark Ages during which all vestiges of Roman presence disappeared. At this time England was
a tribal country, split into different areas which developed into kingdoms, each of which had its
own rules for keeping order.
Little is known of Anglo-Saxon law, primarily owing to the large number of its different individual
local sources. They tended to be handed down orally and few written records exist today. Those
laws of which we know something about regulated only very limited aspects of society. It is also
doubtful whether they bear any relationship to the law as we know and understand it today.
By the 10th century the country had become a single kingdom. It was divided into Shires, which
were further sub-divided into 'Hundreds' (in the South and Midlands) and 'Warpentakes'
(elsewhere). Each of these had its own independent assemblies called moots which, amongst
other functions, acted as local courts. Despite some attempts (by rulers such as King Alfred) to
create a unified national system of law, these moots still acted on the basis of local rules and
customs.
Each locality had different customs which formed the basis of the law that was administered by
the local moots. For example, the ancient custom of Borough English, found in Nottingham and
places in Sussex and Surrey, stated that where a landowner died intestate (i.e. without having
made a will) the land passed to the youngest son instead of the eldest son. In Kent, however, the
custom of Gavelkind provided for the land to pass on intestacy to all the deceased's sons equally.
Some local customs still continue to have legal force today, although this is now rare.
1.4 1066 - 1485
In 1066, the Norman French Duke William defeated the Saxon King Harold II at the Battle of
Hastings. After the Norman Conquest, the prevailing localised legal system slowly but surely gave
way to a general law of the country. There was no sudden sweeping change as a result of the
Conquest. William I and his successors did not seek to alter anything in the new Kingdom that
worked and ensured order. The existing system of regular Shire Courts and Hundred Courts
persisted. However, what the Norman Conquest did bring to England was a strong and centralised
administrative organisation and therefore a completely new system of national government.
England was no longer a tribal country; instead it became a feudal nation.
1.4.1 Development of the King's Courts
Following the Norman Conquest and the imposition of the new feudal system, it became possible
to dispense centralised justice, with the King as the central body. Initially, the King exercised only
'High Justice', that is, his personal power, in a very limited number of disputes. Generally, this
was in cases where the monarch was personally affected, and where the usual localised form of
justice would not work. As such the King's Court, the Curia Regis (King's Council), was available
only to the highest-ranking persons in the country. This, together with the limited jurisdiction of
the King's Courts, meant that they were able to co-exist with the local courts.
The King was aided in the administration of justice by a group of semi-professional skilled clerics
who were part of the royal entourage. These clerics eventually took on the function of deciding
disputes themselves. They became autonomous from the King and established themselves at
Westminster. The establishment of a fixed King's Court was required by the Magna Carta in 1215.
The King's Council gradually developed and different 'branches' of the court evolved to deal with
different types of dispute.
3
, The Three Courts
From the King's Council, there first developed the Court of Exchequer, dealing with royal finances.
Then, there was the Court of Common Pleas, dealing with the owner possession of land. Later,
the Court of King's Bench emerged, dealing with serious criminal matters. These courts remained
until the Judicature Act 1873.
Assizes
To make provision for the administration of law outside London, royal justices were despatched
to the provinces with a royal commission to hold 'assizes' (or sittings) of the royal courts. Initially
the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil
matters. Assize Courts continued until the enactment of the Courts Act 1971.
Other Courts
At four different periods in history, there existed a court known as the Court of Exchequer
Chamber. Its function was appellate (dealing with appeals) and the last court was abolished in
1875, when its jurisdiction was transferred to the Court of Appeal.
1.4.2 The Common Law
With time, the King's Courts became essential to the resolution of disputes between citizens. The
law which the King's judges applied was based upon the common customs of the country, hence
the term 'common' law. This particularly followed the establishment of the first assizes by King
Henry II, to deal with the legacy of a lengthy civil war involving his predecessor, which provided
the opportunity to apply the law of the King's Courts countrywide. The growth of the new system
depended upon the growth of the King's Courts and the eventual establishment of their
ascendancy over the local courts. This did not come easily.
The expansion of the King's Courts was resisted by the local barons who saw it as a threat to
their power, which was often exercised through the local courts. Nevertheless, the growth of the
new system continued. It was firmly in place and recognised as supreme over the local courts by
the time of the reign of Edward I.
It is useful to observe the different meanings of the term 'common law' and to identify which
meaning the term bears in the particular context in which it is used. The term 'common law' may
be used:
1. In the historical sense, to distinguish the law as applied by the King's judges as opposed to
the law as applied by the local customary court;
2. To distinguish the law as applied by the King's Courts as opposed to the rules of Equity, a
system developed by the separate Court of Chancery;
3. To distinguish the whole of case law – that is, law as developed through the system of
precedent – as opposed to statute law; and
4. To identify the law as applied by common law countries (such as Commonwealth
jurisdictions to which the English legal system was exported) as opposed to the law as
applied by civil law countries where the law is based on Roman law (as applied, for instance,
in most of mainland Europe).
4
