HCL - The common law since the roman invasion to now, completely described. L\'histoire PDF

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HISTORY OF COMMON LAW Notion of CL : CL is actually the legal system that originated in the practice of the courts of the King of England after the Norman Conquest 1066 Before NC there was jurisdictions : for a long time : – local folk courts – canon law courts (church) – seignorial and manorial cou...

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HISTORY OF COMMON LAW Notion of CL : CL is actually the legal system that originated in the practice of the courts of the King of England after the Norman Conquest 1066 Before NC there was jurisdictions : for a long time : – local folk courts – canon law courts (church) – seignorial and manorial courts – urban and merchant courts – university courts The history of Common Law in England is the story of how across the centuries, the King's court's decisions gave birth to a new legal system. Particulary in modern times, it became a great colonia power, what we call today the UK. The Kingdom has spread its influence across the whole world : America, India, New Zealand etc.. The ComLaw which was at the beginning the law in the king's courts spread allover the world and it continued to be applied even after decolonization. Former colonies adopted the reception statute : they adopted pre independance english law = even after gaining independance they incorporated english law in their own legal system. They did so because those countries had been using the common law for centuries so they maintained and adopted ComLaw in their new legal system. Today 1/3 of world population lives in ComLaw legal system or in a legal system that is a mix between ComLaw and other systems (Eg: Quebec or India and Kenya that have a system which mixes common law, costumary law and muslim law). Due to history, ComLaw has deeply changed over time. Today the various ComLaw systems share common characteristics but also differences. Eg: in the US there is no king, there is a federal system and there is a written constitution. Moreover, even within UK there are differences between the countries. For example, Scotland doesn't use pure ComLaw but a peculiar system that combines european system and english common law. It's a complicated system that differes from the english CL. There is no pure CL today. Moreover, even in UK : diff : most tricking ex : Scotland : doesn't use CL but system combining europenan system and CL. These are reasons why we will specifically concentrate to England. Another term similar of CL : ius commune : droit commun. In fact, 2 very diff notions. Ius commune : juridical culture coming from interpretation of roman law which spread through all Europe in 7th century. English common law : case law Ius commune : learn law Even if they originated at the same time they are two different things. Ius commune emerged in continental universities (whereas CL emerged in the ' court). Ius commune is the scholar

interpretation of roman law. It was a sort of academic law. Moreover the common law originated as the law common of the kingdom of england made in the king's court. Roman law taught in Oxford and Cambridge : there were contact. We're not saying that there were no contact between the two but they remain two different things. When you come across the term "civil law" : it is a branch of common law that is not the criminal law. When it's used in contradiction of CL it is used as the continental tradition of law. The common law and civil law traditions are the two main legal systems existing today. These two traditions spread all over the world and are the two most wide spread legal systems. We can see continental europe and South America and Mexico are included in civil law tradition. But the civil law tradition isn't uniforme either there are variations between the countries that use civil law. Legal pluralism : In the middle ages : ius commune not the only legal system. It never reached the monopoly of english legal system. It had to compete or coexist with others. –

the canon law : Canon law was close to IC. They both originated in universities.

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Iura propria : multitude particular law all over Europe that were important in legal practice : eg : ordonnances in France , statute in Italia, customary law... etc The existence of IP didn't mean that there were the same rules all over the european countries it's just that the countries shared the same tools.

Legal pluralism existed in England as well, after the Norman invasion, the ComLaw as the law produced by the King's court never reached the monoply of the english system : – customary law – statute law : made by the Parliament, from the king – canon law – civil procedural law Other rules were applied by other courts than the King's court eg: the ecclesiastic court that applied canon law etc... There were legal rules set out by other courts which operated in the english territory, next to the king. So what we can say is that the common law had always to compete w/ other types of law : cutomary law, canon law etc + there was other courts : ecclesiastical courts, chancery court etc.. and also some other courts which followed the roman law procedure : high court of admiralty. Other sets of rules also contributed to english legal system. In general terms, the CL is the english law but in a more precise sense, CL one of the sources of the english legal system, the most important one, it gave the name of the whole system. The existence Ius Commune never meant there was one legal system, it only meant all shared the

same toolbox. It still exists in UK. Traditional View : What you find in many cases is a plain contrast between the two legal systems. –

Civil law tradition is based on a codified legislation and written law.

There is a hierarchy of laws : with the constitution at the top, folowed by codes... and custom at the very bottom. The fact of relying on them is the central caracteristic of civil law. – Common law tradition is based on case law and no statute law. The focus is on resolving the dispute rather that creating a legal system, a codified document of rules. Considered to be more based on tradition whereas civil law is considered to be based on a logical system. But maybe this distinction is too abstract.and simplified. First, the creation of hierarchy is a really recent development, took place in the 19th century and idea that the judge has not created rules, no more than the mouth that pronounces the words of law : Montesquieu « bouche de la loi » : judge. Before that time, no written C* existed in England, no codes either. Judges had much more active role. Moreoever, the idea of a written C* taking priority over ordinary leglislation originated on the CL country, not in Civil law coutries. On the other hand, written law always been present in CL countries. This distinction between a tradition based on case law and another based on written legislation is quite insatisfactory. Of course CL is case law in strict sense because it was produced in king's court, but if we consider the CL tradition as a whole : case law but it is also composed of statute law and so on. Legal plurialism typical of this tradition like of the Civil law. Today, we have been witnessing for a century now of a convergent movement : in continental Europe we are more and more aware of the fact that every thing cannot be contained in a code, and judge far from being la bouche de la loi takes an active part in shaping the law. On the other side, CL more and more aware of importance of a written law in leglislation. In order to have a more correct picture of CL and its legal system, we have to consider the hystorical development.

The History of the English law The study of CL demonstrates the importance of the history of the legal system. In CL judgments references to cases older than 50 years and sometimes 17th century. R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) 2017 26 july Until 2013, acces to justice for employees to enforced their rights was free, if for instance, they

wanted to bring a lawsuit against their employer. But in july 2013, UK governement : have an issue fee to pay when the claim was presented to an employment tribunal. And there was also another fee. The amount of the fee could come to 200 pounds. Appeal of the judgement : more. Procedure against Unison : court : unlawful, obstacle to the access to justice. reference to the Magna Carta : free access to justice for everyone in the kingdom. "In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297" We we shall not regate, nor delay, the justice that is due. •

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Sir Edward Coke : institutes of the Laws of England : "The significance of that guarantee was emphasised by Sir Edward Coke in Part 2 of his Institutes of the Laws of England (written in the 1620s, but published posthumously in 1642)" Iniquitous : injust * Limp : not rigid.

4 periodes may be recognized : – 871-1066 anglo-saxon period – 1006-1485 formation of the CL – 1485- mid 19th century : CL and Equity – mid 19th century-today the Modern Period unprecedent development of statute law. See document kings and queens since 1066 : moodle. EXAM : oral exam maybe I. ENGLAND BEFORE THE NORMAN CONQUEST 1st century to 1066 – Common to say CL born after the NC. Didn't exists before that. – But before 1066, there was other types : variety of customs. – No national judiciature nor legislature in any develop sense. There were decision making bodies from the king's council down to village « councils ». – No uniformity, uniformity was hard to expected, it varied with races, the peoples, the believes. The romans had a sophisticated JP and weren't interested in the customs that involved human sacrifices. Julius Cesar invaded England in 55-54 before JC. •

By the half of the 1st century, romans conquered almost the whole english territory except Northern part of Scotland.

Roman law was enforced but whether roman colonization made lasting impact, had any influenced on British old customs is open to debate. • On the beginning of the 5th century :constant invasions from north sea. They pushed invadors to Cornwall.

Germanic brought germanic customs, also 1st to bring written law. But customary law continue. In 597 : Augustine of Canterbury : came to England : The christian church started competing and prevailed. In the 7th king convert to chrisitanism. Anglo-saxon kingdom not unified, various kingdoms. The unfication of B only started in 9th cent with the king Alfred the Great and was completed in the 10th cent. Attempts to impose uniformity in certain legal fields through codification, but unwritten and variable customs prevail : principle reason to no CL even after the unification, due to absence of any national judicial machinery to require uniformity, an CL. Characteristics of these old customs : Before and after unif of kingdom : no national judicial system Justice administrate at the Local level Even after the unification of the kingdom in the 10th century, the common average english person thought of himself not as an english but as a member of his own village or town. The village was the center of people's life. The justice was administrated by folk assemblies, they discussed local affairs, it was a meeting, there were no lawyers, the principal men were gathered and acted as a community. The procedure and contentious matters was calculated to avoid reasonable or rational decisions No rational system of proof based on collection of evidences, assessments but : oath, physical test : ordeals. God was held to intervene and give answers to questions. Of course : in reality it was a question of hasard. The plaintif was required to give some elements against the defender. Fist : – the defendant could be allowed to proof by oath : « wager of law » with compurgators. He was expected to swear personnaly and bring people to back up him, his oath. The community had to take part to the procedure. No witness, just have to say that they believe what he said. ordeals : In some cases when what the defendent said was not believed there were also a trial by ordeal with two common forms: at this period 2 forms : fire and water. Ordeal of fire : ordalie de feu Ordeal of cold water : ordalie de l'eau : if he sank : innocent. –

Observer must decide if water accept them as guilty or innocent. The priest was invoking the intervention of God.

In the Middle ages, there was a prolonged intellectual debate about legitimacy of ordeal. Many doubts were raised as how God could intervene in human affairs and tell if someone is the culprit. The Church was against it so the Clerge was forbbiden to participate in Ordeal in 1215 and people couldn't follow the procedure because it needed a priest. It was a monumental decision : it brought a revolution in criminal procedure in continental europe and in England, so it brought a criminal jury instead. However the decision made by the latin Concil didn't affect the wager of law, it was still used even in the 13th and 14th century legal system. It was not rational means of proof and this led to a big change in England law. •

Class 1

The ascendancy of the King Of England : Unification of Kingdom of England was completed in the 10th century. With the establishement of the single kingdom of England there was the subdivision of the kingdom. The whole country was divided in shires = little regions, there were more or less 30 of them. These subdivisions have remained the same from the 10th century to today. Only in1972 : some of them were abolished but the rest was concerved. Each shire had an assembly that met twice a year to discuss on the most important affairs of the region, they had to govern the community. The shires were divided in smaller unites called hundreds which also had assemblies and they

were also divied in tithings : groups of 10 people. The village was not included in the subdivision. The most important local officer was the county sherif, it was born in anglo saxon english and it's a contraction meaning shire -reeve ; the kings officer in the shire : it was the king's officer job to administer justice and have controle of the shire. He had to visit each of the shire. Became important aspect of royal government, we saw the beginning of law which could be common to the kingdom. Before Norman conquest, justice beginning to have some foundation but it wasn't explicitly stated by the King, that the justice was a prerogative of the Crown. This system was not really set up and didn't fuction. If the Normans hadn't invaded the kingdom the anglo saxon king would have developped a justice, a legal system common to the whole kingdom. At the end of unification, there was the employement of writing in the business of governedment. It's quite important. Still the extent of the innovation of the Anglo saxon kings, they are not part of a hierarchy administrative system as we know today (eg: we have states then departement, then town). It the case of anglo saxon England there was not hierarchy, the communities were free and independant. The king was present through the sherif and the justice of the Crown only applied to some matters of criminal law and a few of civil law. The communities followed their own customs w/ their own justice, there was no king law distinct applied commonly.

The norman conquest and its consequences : Normans were nordic people who settled down in France, they establish frankish institution, law and language. In the 11th century, they began to show a genius to military exploit, political.. and the art of.... William started political career, he was one of the most powerful rulers of europe. During the time when he acted as the Duke of Normandy, William was supported by the English king Edward the confessor who was his cousin. Since he was childless, King Edward appointed William as his heir. In 1066, King Edward died and William consolided his power in Normandy and was claiming the english crown for him. He invaded England w/ 7 000 men. Harold, Edward's brother also claimed the crown but he was defeted by W in the battle of Hastings which represents the moment of victory of W = norman conquest of england. The Norman conquest wasn't the only conquest of the Norman (eg southern Italy). Normans were in many part of the europe but they never forgot they were Norman. There was a common idea of nationality. The two events (conquest of england and conquest of sicilla) were related becausc in 12 and 13 centuries the two kingdoms the most developped of Europe. When W conquered the Kingdom of Eng, he didn't plan to absorb the Eng King in the Norman Duc, he wanted to keep them separated becausehe kept allegence to the king of Fance. In Eng he could rule with interference, so he had different statues in Eng and in France. In Eng he was the only King, whereas he was a vassal to the King of Fr in Normandy. He was crowned in Westimnster abbey in 1066. 1066 : A conventional Date, commoly thought as the birth of CoLaw : In fact no Colaw was immediatly introduced. All legal changes did not occur immediatly so it's a

conventional date. Today it's questionable if the decade following the conquest changed as much as it is supposed. W planned to be king by lawful succession, so in his view it was not a conquest but the enforcement of his own right becausehe was made the heir of Ed. One of the first acts as a king was to promise to the Eglish that they could keep their old customs, their old laws. But actually a few times after reforms were introduced. Normans were unculured, they had no jurisprudence to bring w/ them, they didn't bring anything. England unlike Normandy had already a central gov w/ the King ruling w/ the sherif. There were already a unified kingdom. The fundamnetal reforms introduced by W in the public administration (and not the administration justice but they were still important) : –

He developped the administration through a group of officiers, in particular the justiciar : group of royal officials who were in charge of administrating the affairs of the Crown. The most important offical was the justicial who was an officer who represented the king in all matters and had to act as a regent to the kingdom when the king was absent and it was frequent since W norman kings spend way more time in Normandy than in Eng.

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The domesday book which collected the records of properties: Mid 1080's : Amount of enormous requests, all the neigbourhoods were concerned. The King required everybody to record what they possessed. Officials were sent into each shire in order to record what each landowner possessed and its value. The main part of it was to determine what taxes the people had to pay to the king and what part of the land was the king's property . This whole operation was known as the description to England, the document that recorded all of these was the Domesday Book. It was a specific reference to the definitive character of the record. The survey which was conducted in 1085-6 it was something huge and a big accomplishement that couldn't be found in any other country.

The creation of a"feudal system" based on the principle that all lands ultimately belonged to the Crown: In order to understand this aspect we must refer to the notion of tenure. Tenure today is a general notion and compassing all the situation that we call "droits réels sur des biens immeubles" = tenures in english. But in the 11th century context, it's the name given to the relationship by which a tenant holds land to the lord. At the beginning tenure was not a legal concept but a social fact, a set of common assumptions. It was the relationship between the Lord and his Tenant. The occupation of land was associated w/ vassalange = the law of vassal was bound to perform ... What is important is that before Norman conquest there was no idea that the land was ultimately owned by the king, allodiale: the land was not the property of any superior. You are the owner of the land, and nobody who is superior has a right on it. They were not bound on the king. All the changes after the conquest, necessarily led to a renegociation of all arrangements concerning the Lands. Normans displaced the english and were considered as tr...