Transcript Document

Common Law
Corso di inglese giuridico
(M-Z)
Università degli Studi di Bari ‘Aldo Moro’
Lezione n. 2
Common Law v. Civil Law
Common law
Civil law
Emerged in England
Emerged in continental
Europe
Was applied in english
colonies
Is uncodified
Scarse influence of
Roman law
Judicial decisions are
sources of law
Was applied in european
colonies
Is codified
Great influence of
Roman law
Judicial decisions are not
sources of law
Common Law v. Equity
Common law
The branch of English law
elaborated since the Norman
conquest in 1066
Based on the system of writs
Developed by the Courts of
Westminster
Characterized by strong
formalism
Equity
The branch of English law
that developed since XV
century
Emerged in opposition to the
system of writs
Developed by the Chancery
Court
Not based on strict formalities
Common Law v. Statute law
Common law
Statute law
Case law
Judicial decisions
Unwritten law
Acts of Parliamens
Legislation
Written law
Pronounced by judges when
deciding cases
Not formally enacted by the
legislature
Enacted by the legislator
according to procedures
recognised as valid for
producing law
The origin of common law
 Norman conquest (1066):
- The customs of the Saxons weren’t abolished
immediately
- Many innovations were introduced
CREATION OF A FEUDAL SYSTEM
The land was allocated to feudal vassals of the king
and was created a chain of feudal relationships
Feudal system
King
Tenants in chief
(lords or members of aristocracy)
Intermediate tenants
Tenants in demesne
(who actually occupied the property)
Administration of justice
 First
itinerant justice
the royal
judges went out to provincial town and
applied everywhere the common law of
Westminster both in criminal and in civil
cases
 From the XIII century
creation of the
Courts of Westminster to apply the common
law
Courts of Westminster
 Exchequer
(for the administration of the royal treasury)
 King’s Bench
(for criminal matters and for any case which
concerned the monarchy)
 Common pleas
(for matters of civil property and, in general, civil
claims)
The system of the writs
Writ = a written order in the king’s name,
issued by the king’s writing office (chancery)
at the istance of the complainant
Ordering the defendant to appear in the royal
courts to see justice done
If a plaintiff wished to have justice he would
need a writ to enable to do it
WRITS
For every complaint
a specific writ:
1. The plaintiff had to ask for the right writ
2. If the plaintiff asked for the wrong writ he
wouldn’t have justice
Ex: - writ of right: for a proprietary action
- writ of convenant: for breach of contract
GREAT FORMALISM
WRITS
GREAT RELEVANCE: in common law there
is a right where there is a writ to enforce it
Remedies precede rights
Creation of new writs
creation of new rights
Great developement of common law
CRISIS OF WRITS
Problems:
- formalism: who chose the wrong writ lost
the action
- Expensiveness: who hadn’t enough money
couldn’t obtain justice
- The centralization of justice and the
growing power of royal courts reduced the
power of the Lords
strong opposition
Magna Charta
(1215)
 The first step of the opposition of the Lords
 A fundamental document in English history
which is the starting point for the protection of
freedoms in English structure
Required the king:
- renounce certain rights
- respect some legal procedures
- accept that his will would be bound by the law
Magna Charta

Fundamental clauses:
39. No freemen shall be taken or imprisoned or disseised or
exiled or in any way destroyed, nor will we go upon him
nor send upon him, except by the lawful judgment of his
peers or by the law of the land.
60. Moreover, all these aforesaid customs and liberties, the
observances of which we have granted in our kingdom as
far as pertains to us towards our men, shall be observed b
all of our kingdom, as well clergy as laymen, as far as
pertains to them towards their men.
Equity
The first consequence of the crisis of the writs was the developement
of Equity jurisdiction:

The mechanical application of writs did often result in
injustices;

Many plaintiffs started recurring straightly to the king to obtain
justice;

For the growing number of the petitions, the king delegated the
task of hearing petitions to the lord chancellor;

The early chancellors were clergymen that operated as “keepers
of king’s coscience”;

So it was developed an autonomous body of rules, known as
Equity
Equity = the complex of the rules, originally created to mitigate the
strictness of common law,
developed in the Court of Chancery
It was characterized:

By the informality of the procedure (the action started by an
informal procedure that could be written or oral; then the
chancellor called the respondent with a ‘writ of subpoena’
common for all the procedures);

The trial was very fast and informal (the chancellor collected
evidences; heard the parties and the witnesses and then took the
decisions);

The decisions were taken on the basis of rules initially inspired
to moral and catholic principles, on aequitas;

The chancellor gave orders in personam (to do or not to do
something) to purify the respondent’s coscience
The contrast between Common law and
Equity
1.
2.
At the beginning = equity followed the law = the equity
solutions were not in contrast with common law
By the time begun a strong contrast between common law and
equity = different solutions in the two fields of jurusdiction
Who had lost in a common law procedure often advocated the equity
courts that frequently reversed the decision
It was inacceptable for the Westminster’s judges and a strong
contrast started
The law reforms
- The contrast between common law and equity
- The industrial revolution
Required reforms
JUDICATURE ACTS (1873-1875):
1. REORGANIZATION OF THE COURTS OF
JUSTICE
2. FUSION BETWEEN COMMON LAW AND
EQUITY’S COURTS
3. ABOLITION OF THE FORMS OF ACTION