WORKSHOP 1
Sources of Law
What is the Law?
The system of rules which a country recognises as regulating its actions. Enforced with penalties.
Function of the Law
• Maintains peace and safety in society
• Regulates relationships between individuals and legal entities
• Protects human rights and liberties
• Ensures smooth running of economic and political activities
• The legal system must reflect the wishes of the majority of the population.
• It must develop in line with society changes to remain relevant.
• The legal system that we have today is a by-product of a long history of legal developments.
Timeline of legal development
Pre-1066
Locally based systems and customs of society
1066–1485
Formation of common law and its imposition over local systems and customs
1485–1870s
• Development of equity
• 2 separate legal systems co-exist
1870s–present
• Joint jurisdiction for common law and equity
• Massive development in statute law
• Growth of government and admin bodies
• EU law influence (post-1973)
• Legal system comes from the King’s Court
• Gradually became possible to dispense a more centralised form of justice. King as central figure.
• The King’s Council (Curia Regis)
– Allowed the monarch is exercise personal power “High Justice”
– Prototype central court which existed alongside local courts
– Aided by semi-pro clerics who evening took on the role of deciding disputes
– Established themselves at Westminister
,3 Courts
Developed from the King’s Council.
• Court of Exchequer (deal with royal finances)
• Court of Common Pleas (deal with ownership and possession of land)
• Court of King’s Bench (deal with criminal matters)
• Court of Exchequer Chamber (appeal court)
• Royal justices were dispatched to the provinces to hold assizes (sittings)
• Assizes had jurisdiction over criminal matters then later civil matters
• Assizes Courts continued until enactment of Courts Act 1971
• Three court system remained until Judicature Act 1873
• Court of Exchequer Chamber remained until 1875 – transferred to new Court of Appeal
Common Law
• King’s Court became essential to dispute resolution between citizens
• Law the judges passed was based on common customs = common law
• For the new system to overtake the local courts it needed to grow
• Local baron’s resisted – threat to their power
• Growth of system continued and was supreme over local courts by 1272–1307.
Common law meanings:
• Historic = law applied by King’s judges vs. law applied by customary courts
• Equity = law applied by King’s judges vs. rules of Equity
• Law developed by judges through precedent vs. Statute law
• Law applied by common law countries vs. law applied by civil law countries
Writ System
• Common law developed by King’s Court was a produral system
• No automatic right to access the King’s Court
• To pursue a claim – claimant had to purchase a writ from the Chancellor
Writ = document with a royal seal. Constitutes a royal demand for the defendent
to appear before the court.
• Contains foundation of the complaint
• Different form of writ used for each ground of complaint
• System became too rigid
• Only parliament could issue a new type of writ
• If a claimant could not find an existing writ he had no claim
• This stiffled the growth of legal system
,Different forms of writ
• Writ of Right – Developed “in battle” to recover land
• Debt – Recovery of fixed sum
• Detinue – Return of personal possession
• Covenant – Breach of promise
• Account – For a payment
• Trespass – Against persons, good and land
• Case – No current action (influenced the development of tort law)
• Writ system demonstrates how common law was bound by complex and restrictive procedures.
• For each writ there is a corresponding fixed procedure with steps to be followed.
• Failure to follow the correct procedure is fatal to the action.
• Common law was developed as a means to resolve disputes not necessarily justice.
• It only offered damages - no way to compell a party to fulfil their promises.
• Encouraged the emergence of the law of equity
, Case law
• T erm case law/common law used to distinguish law that is decided by judges,
from statute law made by Parliament.
• Also known as “Judge made” law.
• Governed by rules of precedent.
Rules of Precedent
Decisions of judges higher up the hierachy of courts are binding on those lower down.
Judges
Decide cases brought by individuals. Judges will:
• Consider the evidence
• Consider the applicable law
• Give a judgment (spelt like this deliberately)
• Apply the law to the facts of the case
• Reach a decision on which party should succeed
• Decide what remedy the successful party is entitled to
Judges do not decide law, they declare what has always been.
Statute law is prospective.
Statutes set out the law for the future and rarely have retrospective effect.
Stare decisis
or binding precedent = “stand by what has been decided”.
• O
nce a principle has been laid down, future cases with the same material facts
must be decided in the same way.
Civil Law
• Courts concentrate on interpreting detailed written codes of the law.
• Precedents are just examples of the application of codes.
Judgments
Sources of Law
What is the Law?
The system of rules which a country recognises as regulating its actions. Enforced with penalties.
Function of the Law
• Maintains peace and safety in society
• Regulates relationships between individuals and legal entities
• Protects human rights and liberties
• Ensures smooth running of economic and political activities
• The legal system must reflect the wishes of the majority of the population.
• It must develop in line with society changes to remain relevant.
• The legal system that we have today is a by-product of a long history of legal developments.
Timeline of legal development
Pre-1066
Locally based systems and customs of society
1066–1485
Formation of common law and its imposition over local systems and customs
1485–1870s
• Development of equity
• 2 separate legal systems co-exist
1870s–present
• Joint jurisdiction for common law and equity
• Massive development in statute law
• Growth of government and admin bodies
• EU law influence (post-1973)
• Legal system comes from the King’s Court
• Gradually became possible to dispense a more centralised form of justice. King as central figure.
• The King’s Council (Curia Regis)
– Allowed the monarch is exercise personal power “High Justice”
– Prototype central court which existed alongside local courts
– Aided by semi-pro clerics who evening took on the role of deciding disputes
– Established themselves at Westminister
,3 Courts
Developed from the King’s Council.
• Court of Exchequer (deal with royal finances)
• Court of Common Pleas (deal with ownership and possession of land)
• Court of King’s Bench (deal with criminal matters)
• Court of Exchequer Chamber (appeal court)
• Royal justices were dispatched to the provinces to hold assizes (sittings)
• Assizes had jurisdiction over criminal matters then later civil matters
• Assizes Courts continued until enactment of Courts Act 1971
• Three court system remained until Judicature Act 1873
• Court of Exchequer Chamber remained until 1875 – transferred to new Court of Appeal
Common Law
• King’s Court became essential to dispute resolution between citizens
• Law the judges passed was based on common customs = common law
• For the new system to overtake the local courts it needed to grow
• Local baron’s resisted – threat to their power
• Growth of system continued and was supreme over local courts by 1272–1307.
Common law meanings:
• Historic = law applied by King’s judges vs. law applied by customary courts
• Equity = law applied by King’s judges vs. rules of Equity
• Law developed by judges through precedent vs. Statute law
• Law applied by common law countries vs. law applied by civil law countries
Writ System
• Common law developed by King’s Court was a produral system
• No automatic right to access the King’s Court
• To pursue a claim – claimant had to purchase a writ from the Chancellor
Writ = document with a royal seal. Constitutes a royal demand for the defendent
to appear before the court.
• Contains foundation of the complaint
• Different form of writ used for each ground of complaint
• System became too rigid
• Only parliament could issue a new type of writ
• If a claimant could not find an existing writ he had no claim
• This stiffled the growth of legal system
,Different forms of writ
• Writ of Right – Developed “in battle” to recover land
• Debt – Recovery of fixed sum
• Detinue – Return of personal possession
• Covenant – Breach of promise
• Account – For a payment
• Trespass – Against persons, good and land
• Case – No current action (influenced the development of tort law)
• Writ system demonstrates how common law was bound by complex and restrictive procedures.
• For each writ there is a corresponding fixed procedure with steps to be followed.
• Failure to follow the correct procedure is fatal to the action.
• Common law was developed as a means to resolve disputes not necessarily justice.
• It only offered damages - no way to compell a party to fulfil their promises.
• Encouraged the emergence of the law of equity
, Case law
• T erm case law/common law used to distinguish law that is decided by judges,
from statute law made by Parliament.
• Also known as “Judge made” law.
• Governed by rules of precedent.
Rules of Precedent
Decisions of judges higher up the hierachy of courts are binding on those lower down.
Judges
Decide cases brought by individuals. Judges will:
• Consider the evidence
• Consider the applicable law
• Give a judgment (spelt like this deliberately)
• Apply the law to the facts of the case
• Reach a decision on which party should succeed
• Decide what remedy the successful party is entitled to
Judges do not decide law, they declare what has always been.
Statute law is prospective.
Statutes set out the law for the future and rarely have retrospective effect.
Stare decisis
or binding precedent = “stand by what has been decided”.
• O
nce a principle has been laid down, future cases with the same material facts
must be decided in the same way.
Civil Law
• Courts concentrate on interpreting detailed written codes of the law.
• Precedents are just examples of the application of codes.
Judgments
