Lecture 1 Part 2 : What is the Common Law?

What is Common Law?

Blackstone ‘The Common Law’

"... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law."

Sir William Blackstone 1723-1780

Commentaries on the Laws of England Four Volumes published between 1765-1769

"IT IS BETTER THAT TEN GUILTY PERSONS ESCAPE THAN ONE INNOCENT SUFFER.“

SIR WILLIAM BLACKSTONE

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The development of Common Law

William the Conqueror 1066-1087

Early illustration of trial by combat

Trial by ordeal

• Until banned in C13th trial could be by ordeal

• Male serfs underwent trial by water

• Freemen and all women, trial by hot iron.

• If a person was innocent God would perform a miracle

• There was also trial by combat - "wager of battle.“

The Curia Regis “King’s Court”• Used by William I to govern the country and as

court for deciding disputes

Juries and the shires

• Takes throne after generation of civil war

• Keen to regain control• Institutionalised common law • Court system ‘common’ to the

country• King’s Bench in Westminster• Judges go ‘on circuit’• Eliminated arbitrary remedies• Jury system of citizens sworn on

oath to investigate criminal and civil matters

Henry II 1154-1189

Spread ofCommon

Law

King’s courts

12thCenturyEngland & Wales

Case report from reign of Edward III

Earliest Law Reports

Date from C13thThe Year Books

The oldest available law reports cover the period c.1272 (the early years of Edward I's reign) to 1535.

They are written in legal French or Latin and were produced anonymously

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Feudal times

• The Assize system lasted until 1971

• Current Circuit system - High Court judges sit in London and travel around the country

The Court of King's Bench at work. C15th illuminated manuscript

Henry II and the jury

• 1166 Royal Edict• Grand Jury – jury of

presentment• Followed by ordeal• Petty jury - Trial jury

used to decide guilt after abolition of trial by ordeal in 1215

Reflections

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Peaceful Resolution of DisputesThe ending of blood feuds in England coincided with the

establishment of the King’s Courts in the 12th Century

“The justification of a legal system and procedures must be one of lesser evils - that legal resolution of disputes is preferable to blood feuds, rampant crime and violence.” [Bayles 1986]

Romeo and Juliet

“The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities.”

Eduardo Couture (1950)

The courts are public sites for justice

Countries marked in red at those with a Common Law legal system

Features of Common Law SystemsOrigins in English Common Law

• Not always a written constitution or codified laws• Judicial decisions binding – decisions of highest court

only overturned by same court or through legislation• Everything permitted that not expressly prohibited by

law