Chapter 2 - Lecture notes lecture notes PDF

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Intended Learning OutcomesOn completion of this chapter, you should be able to: 1. Compare and contrast the common law system and the civil law system. 2. Analyse classiication of law in the common law system through application of knowledge to hypothetical circumstances. 3. Relect on the historical...

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Chapter 2

The Common Law System [2.10] [2.20]

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REVIEW

INTRODUCTION ................................................................................................................ 00 OVERVIEW OF THE COMMON LAW SYSTEM IN AUSTRALIA............................................... 00 [2.20] Common law versus civil law legal systems ......................................................... 00 [2.30] Classification of law ............................................................................................. 00 HISTORICAL BACKGROUND .............................................................................................. 00 [2.80] Customary law in pre-Norman England............................................................... 00 [2.140] Following the Norman Conquest ........................................................................ 00 [2.250] Emerging English legal system............................................................................. 00 RISE OF CONSTITUTIONAL LAW IN ENGLAND .................................................................. 00 [2.370] Magna Carta, rule of law and due process ........................................................... 00 [2.390] Emergence of Parliament..................................................................................... 00 [2.420] Glorious Revolution of 1688 ................................................................................ 00 [2.440] Constitutional monarchy ..................................................................................... 00 [2.450] Parliamentary supremacy .................................................................................... 00 EQUITY .............................................................................................................................. 00 [2.470] Emergence of equity ........................................................................................... 00 [2.480] Equitable jurisdiction of the Court of Chancery ................................................... 00 [2.490] Judicature Acts .................................................................................................... 00 COMMON LAW, EQUITY AND STATUTE LAW .................................................................... 00 [2.510] Overview............................................................................................................. 00 [2.520] Waltons Stores v Maher ....................................................................................... 00 QUESTIONS ......................................................................................................................... 00

Intended Learning Outcomes On completion of this chapter, you should be able to: 1. Compare and contrast the common law system and the civil law system. 2. Analyse classification of law in the common law system through application of knowledge to hypothetical circumstances. 3. Reflect on the historical background to the Norman Conquest and the emerging English legal system. 4. Critically evaluate the importance of Magna Carta to the rise of constitutional law in England.

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5. Compare and contrast common law, equity and statute law in the context of the common law system. 6. Reflect on the relevance of common law, equity and statute law through the analysis of a judgment of the High Court of Australia.

Introduction The chapter provides an overview of the common law system in Australia and its historical development in England. An understanding of the historical background to the common law forms an important part of understanding the basis of the current Australian legal system. The chapter provides an overview of: customary law in preNorman England; the Norman Conquest in 1066; the period under the reign of William I immediately following the Conquest (1066–1087); and the period under the reign of King Henry II (1154–1189). This overview is from the point of view of the development of the common law and, as such, will cover periods essential to the early common law. The chapter provides an overview of the emerging English legal system during the 13th and 14th centuries followed by an overview of the rise of constitutional law in England. The chapter then analyses the development of equity and the relationship between common law, equity and statute law as part of the common law system. An understanding of the relationship between common law, equity and statute law is very important because this underpins an understanding of the common law system in Australia.

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Overview of the Common Law System in Australia Common law versus civil law legal systems The Australian legal system is an example of the common law legal system and had its historical origins in England. A common law legal system, therefore, refers to any system of law derived from the English legal system. Examples of common law legal systems include England and Wales, Australia, New Zealand, the United States of America, India, Singapore and Canada (although the Canadian Province of Quebec has a civil law legal system). In contrast, Roman law forms the basis of civil law legal systems. Chapter 1 provides an overview of Roman law. Examples of civil law countries include Scotland (a dual common law and civil law jurisdiction), France, Switzerland, Greece, Spain, Germany, Thailand, Taiwan and South American countries. Although a detailed examination of the civil law system is outside the scope of this textbook,

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students should note that the common law system is adversarial in nature and is based on legal precedent (ie, authoritative past court decisions). In contrast, the civil law legal system is inquisitorial in nature and is based on legal codes. The adversarial nature of the common law system refers to the active role of the litigants before the court in arguing their case with the judge taking a more passive role in controlling court proceedings, making decisions regarding admissible evidence and ensuring that justice between the litigants occurs through proper application of the relevant law. In contrast, a judge in civil law system takes a far more active role in the proceedings of the court including being involved in the decisions on whether to call particular witnesses to give evidence at trial.

Classification of law Introduction [2.30] There are various ways to classify law, and only a very brief overview is set out below to provide some context to the analysis in the chapter. One way to classify law is to distinguish between “public law” and “private law”. Throughout their law program, students study various subjects or courses which can be classified as either public law or private law. Examples of each type of classification are set out below.

Public law

Learning Task [2.40]

1. Undertake independent research to explain the meaning of public law. 2. Undertake independent research to compare and contrast the following examples of publiclaw. • Administrative law • Constitutional law • Criminal law • Industrial law • Taxation law

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Private law

Learning Task [2.50]

1. Undertake independent research to explain the meaning of private law. 2. Undertake independent research to compare and contrast the following examples of private law. • Law of contract • Law oftorts ◦

Intentional torts to the person (assault, battery, false imprisonment)

◦

Trespass to land

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Nuisance

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Negligence

• Law of property

Civil jurisdiction versus criminal jurisdiction [2.60] Another classification of law is the distinction between the civil law dealt with in the civil jurisdiction of courts and criminal law dealt with in the criminal jurisdiction of courts. Examples of law dealt with in the civil jurisdiction of a court include contract law, the law of torts and property law. Court proceedings dealing with a civil matter are commenced by a plaintiff against a defendant. For example, the plaintiff might be claiming monetary compensation from the defendant in relation to an alleged breach of contract by the defendant. In a civil matter, the onus of proof of the claim is on the plaintiff who must prove the claim on the balance of probabilities. Some examples of criminal offences heard in the criminal jurisdiction of a court include murder, stealing and assault. In a criminal matter, the onus of proof is on the prosecution (ie, the Crown or the State) who must prove the guilt of the defendant (ie, the accused person) beyond reasonable doubt.

Learning Task [2.70]

1. Undertake independent research to explain the difference between “on the balance of probabilities” and “beyond reasonable doubt”. 2. Which is the higher standard of proof? 3. Why is there a different standard of proof in civil matters compared with criminal matters?

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Historical Background Customary law in pre-Norman England Introduction This coverage of customary law in pre-Norman England emphasises the nature of the customary law which existed at the time. Customary law refers to law which develops from the customs within a particular society, or within a group in a particular society. It is not based on any written law introduced by a King or a parliament but arises through, and is enforced by, its recognition and general acceptance. Customary law covers aspects of a society concerning everyday existence such as personal protection and personal property rights. In contrast to legislation or written law, customary law is unwritten law. Rather than being formally written down, it is followed through being passed on to future generations by spoken word. Customary law varied significantly across the various pre-Norman kingdoms in England, as it was closely connected to everyday life, and as habits and attitudes varied across the Kingdoms and the various tribes within each Kingdom, so did customary law.1

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Roman Britain The date of 753 BC is the traditional date of the founding of Rome. For a period of approximately 250 years, Rome was ruled by a series of kings, until the revolt of 510 BC heralded the commencement of the Roman Republic. The Republic lasted until 27 BC, when the Roman Empire emerged. The classical period from 27 BC to AD 223 was a period during which the Roman Empire had significant political influence over Europe, and this included Britain. Prior to the Roman invasion in AD 43, the Celts ruled in Britain. The Celts consisted of different tribes, and each tribe was ruled by a Celtic chief. Celtic religion and customs were not written down but were recognised, accepted and passed on to future generations by spoken word.2 The recognition and acceptance of the customs within each tribe constituted Celtic customary law within that tribe. Celtic customary law was, therefore, unwritten law in contrast to the codified or written system of Roman law which had developed during the period of the Roman Republic. This codified Roman law included proceedings preliminary to trial, the trial, execution, inheritance, ownership and possession, real property law, torts and sacred law.3 Although a sophisticated system of codified Roman law existed at the time, in Britain it was applied only to the Romans. Despite the Roman occupation, the Celts used their own customary law.4 The Romans continued to occupy Britain until their withdrawal in AD 410.

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1. 2. 3. 4.

J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 1. J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 2. A Stephenson, A History of Roman Law (Fred B Rothman & Co, 1992) pp 126–137. J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 2.

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The Anglo-Saxons Angles, Saxons and Jutes During the two centuries following the Roman withdrawal, Britain was invaded from across the North Sea by the Angles, the Saxons and the Jutes. The Angles were from Germanic tribes, the Saxons were tribes from what is now the south of Germany and from the Netherlands, and the Jutes came from what is now Denmark. These invading tribes pushed the existing Celtic tribes to the west to what is now Wales and southern Scotland. The invading Angles and Saxons became known as the Anglo-Saxons, and they settled in the east and south of England. In particular, the Angles settled in East Anglia and Northumbria and the Saxons settled in Essex, Sussex and Wessex. The Jutes settled in Kent. The Anglo-Saxons brought with them their own customary law. The cultural differences between the Anglo-Saxons and the Celts meant that Anglo- Saxon customary law differed significantly from the various forms of Celtic customary law applied in Celtic tribes. Within the various Anglo-Saxon tribes in the east and south of England, AngloSaxon customary law also differed from tribe to tribe. The customary law of the Jutes, which was applied in each of their tribes, provided a further variation to the law which existed across the various regions of England at the time. A common law in England did not start to develop until after the Norman Conquest in 1066.

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Anglo-Saxon law Anglo-Saxon law existed as an unwritten, customary law based on existence and survival within Anglo-Saxon tribes. Existence within these tribes was a harsh experience. It entailed life within large forests where starvation and attack from others within the same tribe were not uncommon. The customary law of the tribes reflected this harsh existence and was itself “conservative and harsh” as “violence, robbery and death formed its background”.5 As this Anglo-Saxon customary law reflected the customs of the various tribes, it was applied through general meetings of members of the tribe rather than through any formalised court procedure.6 It also meant that as these tribes became more civilised over the centuries, following the withdrawal of the Romans from Britain, the customary law itself changed to reflect greater civilisation within the tribes. It remained, however, mainly unwritten law. It was not until after the Danish invasion of parts of the east of England in the ninth century that some aspects of Anglo-Saxon law became written down.

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5. 6.

A Kiralfy, Potter’s Historical Introduction to English Law and Its Institutions (4th ed, Sweet & Maxwell, 1958) p 10. A Kiralfy, Potter’s Historical Introduction to English Law and Its Institutions (4th ed, Sweet & Maxwell, 1958) p 10.

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The Dooms [2.120] During the ninth century, following the Danish invasion, Alfred the Great, King of Wessex from 871 to 899, believed that unification of the different Anglo-Saxon Kingdoms in England was necessary to ensure protection of the Kingdoms from the Danish invaders. He also believed that something should be done in response to the “Danelaw”7 which was brought by the invaders. He believed that codification of parts of the existing Anglo-Saxon customary law would also strengthen the unity between the Anglo-Saxon Kingdoms.8 This attempt at codification of customary law was through the Dooms of Alfred,9 which were “detailed but unsystematic and fragmentary”.10 The Dooms contained laws covering officials, revenue collection, methods of proof and the administration of justice.11 They also contained details of punishments and fines. Although the Dooms were not a codification of Anglo-Saxon customary law, they did form part of the process of unification of the various Anglo-Saxon Kingdoms which existed at the time. The Dooms of Alfred also constituted the precedent for the Dooms of the Danish King Cnut (1016–1035) and the Dooms of Edward the Confessor, King of England (1042–1066).12 Edward the Confessor was the penultimate Anglo-Saxon King of England. Although the Dooms were an attempt to strengthen unity between Anglo-Saxon Kingdoms, they did not have any significant influence on the development of a common law of England because centralisation of the administration of justice was yet to be achieved.13

Reflective Tasks [2.130]

1. Compare and contrast customary law in pre-Norman Britain with Roman law of the same period in Britain. 2. Explain the relevance of the Dooms to the period of pre-Norman Britain.

7. 8. 9. 10.

It is possible that the word “law” entered the English language through the word “Danelaw”. J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 3. “Dooms” was the Anglo-Saxon word for law. A Kiralfy, Potter’s Historical Introduction to English Law and Its Institutions (4th ed, Sweet & Maxwell, 1958) p 11. 11. A Kiralfy, Potter’s Historical Introduction to English Law and Its Institutions (4th ed, Sweet & Maxwell, 1958) p 11. 12. J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 3. 13. J Baker, An Introduction to English Legal History (4th ed, LexisNexis Butterworths, 2002) p 3. King Edward was canonised as a saint of the Roman Catholic Church in the 12th century. He is known as Edward the Confessor because of his piety.

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Following the Norman Conquest The Conquest Edward the Confessor died of natural causes in January 1066. Shortly before his death, he named his successor, Harold, who was to be last Anglo-Saxon King of England. The newly crowned King Harold faced two invasions. The first came from the Viking King of Norway and the second came from William, Duke of Normandy. Without delay, Harold took his army north and defeated the invading Norwegian Vikings at the Battle of Stamford Bridge outside York in September 1066. Immediately following this victory, Harold took his weary army south to confront the army of William, which had sailed from Normandy in France and had landed near Hastings in the south of England. William, a distant cousin of Edward the Confessor, claimed that Edward had promised him the English throne. This promise was disputed by Harold and on 14 October 1066 Harold’s army suffered defeat at the Battle of Hastings and Harold was killed. William, Duke of Normandy, who became known as William the Conqueror, was crowned William I, the first Norman King of England.

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William I: 1066–1087 Anglo-Saxon law William I did not attempt to make any significant changes to the existing AngloSaxon law. There are two possible reasons for this.14 First, William claimed to be the legitimate successor to the English throne, following his gift to succession made by Edward the Confessor and following his defeat of King Harold at the Battle of Hastings.15 Thus, William issued royal charters promising that the people of England could live under the Anglo-Saxon law in place at the time of Edward the Confessor. Second, William and the Norman Kings who succeeded him realised that, from a practical point of view, it would have been extremely difficult to replace the existing Anglo-Saxon customary law with Norman law. [2.150]

The position in relation to land was different. Followi...