Samenvatting hoorcolleges introduction to common law

Samenvatting Hoorcolleges

Week 1 & 2
Common Law Overview
 Definition: A legal system originating in England, characterized by case
law, judicial precedent (stare decisis), and a mix of common and statutory
law.
 Timeline:
o 1050–1500: Formation of common law.
o 19th Century: Major reforms.
o Modern Developments: Integration with statutory law and the
doctrine of precedent.

I. Development of Common Law (1050–1500)
1. Origins:
o Pre-1150: Local courts governed by local laws.
o 1066: William the Conqueror centralized justice under the Curia
Regis (king’s Court).
o Post-1150: Establishment of common law under Henry II (1133–
1189) with innovations like:
 General Eyre: Itinerant judges traveled circuits to hear cases
across the kingdom.
 Courts of Assizes: Regional courts held by royal judges.
 Jury System: Local citizens provided evidence and made
decisions under oath, laying the foundation for the modern
jury system.
2. Magna Carta (1215):
o A seminal document that established key legal principles and curbed
the king’s arbitrary powers.
o Specific provisions laid the groundwork for centralized courts:
 Court of Exchequer: Taxes.
 Court of King’s Bench: Cases involving the Crown.
 Court of Common Pleas: Private disputes, not relevant to king
3. Nature and Characteristics of Early Common Law
Foundation in Custom:
o Common law evolved from long-standing customs. Judges declared
existing customs rather than creating entirely new laws, following
the "declaratory theory" of law.
Limited Jurisdiction:
o Access to justice required a royal writ (breve), a formal command
from the King to hear a case.
o Examples of writs:
 Writ of Debt: For financial disputes.
 Writ of Trespass: For unlawful acts causing harm (e.g., vi et
armis, acts of force).
Importance of Procedure:
o Legal maxim: Ubi remedium, ibi ius (Where there is a remedy, there
is a right).
o The focus was on ensuring a procedural framework to resolve
disputes effectively.
Case Law and Precedent:
o Early cases established the doctrine of stare decisis (to stand by
decisions), where judges followed past rulings to ensure consistency
in law.

, 4. Reasons for the Development of Common Law
Feudal Law:
o The King owned all land, leading to disputes over land possession
versus ownership.
Taxes and Fees:
o Common law streamlined the administration of taxes, benefiting the
Crown financially.
Efficient Justice Administration:
o Centralized courts improved access to justice and provided
predictable outcomes.

5. Innovations in Procedure
Statute of Westminster (1285):
o Introduced nisi prius procedures, allowing cases to be heard locally
before being sent to central courts.
Bukton v. Tounesende (1348):
o An early example of "trespass on the case," expanding remedies to
cases not explicitly covered by existing writs.

II. Development of Equity
1. Issues with Common Law:
o Inflexibility (Provisions of Oxford 1258 limited new writs).
o Procedural hardship.
o Limited remedies (e.g., only monetary damages).
2. Equity’s Role:
o Introduced by the Lord Chancellor for fairness (conscience-
based decisions).
o Foundation: ‘conscience’
o New remedies: Injunctions, trusts, and specific performance.
o Characteristics: Case law:
 Bukton v. Tounesende (1348): Expanded remedies through
"trespass on the case."
 Earl of Oxford Case (1615): Equity prevails in conflicts with
common law.

III. Reforms of the 19th Century
1. Problems with Pre-Reform System:
o Overlapping jurisdictions of common law and equity courts.
o Complexity and rigidity of the precedent system.
o Delays in Chancery courts.
2. Judicature Acts (1873–1875):
o Unified courts into a single High Court with three divisions:
 Queen’s Bench (common law).
 Chancery division (equity).
 Family division: Family-related disputes
o Allowed courts to apply both common law and equity.
o Writ-system abolished -> now writ of summons
3. Significant Case Law:
o Priestley v. Fowler (1837): Established limitations on employer
liability.
o Bentham on Dog Law: Critiqued inflexible case law.

, Lower Courts:
1. Magistrates’ Courts (Approximately 1,000):
o Handle petty crimes like traffic offenses and minor thefts.
o Deal with some family law matters, such as adoption orders and
custody hearings.
2. Crown Courts (Approximately 100):
o Responsible for serious crimes, including murder, rape, and
robbery.
o Hear appeals from Magistrates’ Courts and conduct jury trials for
indictable offenses.
3. County Courts (Approximately 270):
o Deal with smaller private claims, such as those involving tort and
contract disputes.
o Focus on civil cases, often involving individuals or small businesses.

Supreme Court of the United Kingdom (London):
 Established in 2009, replacing the appellate function of the House of
Lords.
 Acts as the highest court of appeal for civil and criminal cases across
England, Wales, Northern Ireland, and Scotland (for certain cases).

IV. Statutory Law
1. Relation with Common Law:
o Statutes supplement common law but are supreme (Parliamentary
sovereignty).
o Interpretation methods:
 Literal Rule: Plain meaning (Fisher v. Bell [1961]: Display of
goods not an offer).
 Golden Rule: Avoids absurd outcomes (R. v. Allen [1872]:
Interpretation of "marriage").
 Mischief Rule: Remedying defects in law (Heydon’s Case
[1584]).
2. Key Case Law Examples:
o Corkery v. Carpenter (1951): "Carriage" includes bicycles for legal
purposes.