THE HISTORY OF THE LAW

Understanding how and why the law has evolved and is still evolving is useful for comprehending and applying the law. Lawyers must comprehend how and to what extent the law may be established and interpreted in order to serve the interests of their clients. This article discusses the history of law.


ENGLISH LEGAL HISTORY


The existing legal systems and the possibility for growth and modification interact. It is required to go quite far back in our legal history in order to comprehend the forms as well as the larger dynamics of our legal system.


LAW IN SOCIETY


The law is a set of guidelines designed to maintain order in society. These laws must represent the preferences or tolerance of the vast majority of the populace in order to be believable and enforced. As a result, the law is continuously evolving to reflect how society is developing, sometimes setting the pace and other times following.


THE DEVELOPMENT OF LAW


English law mostly evolved independently of foreign influences. Four main phases may be identified in this evolution.


  1. Anglo-Saxon culture prior to 1066 (the Norman conquest): regional systems/customs;

  2. The development of common law and its imposition over and above regional systems and traditions from 1066 to 1485 (Tudor accession);

  3. 1485-1832 creation of equity; and

  4. From 1832 until the present shows us the modern era is characterised by consolidation, a significant increase in statute legislation, government and administrative activity, and the influence of Europe.

HISTORY OF LAW


PRE-1066


The Dark Ages, during which no signs of Roman occupation remained, began in England when the Romans left Britain in the fifth century A.D. At the time, England was a tribal nation divided into many regions that later became kingdoms, each with its own set of laws for maintaining order.


Anglo-Saxon law is poorly understood, largely because it has so many unique and scattered local origins. The laws that we are aware of only dealt with a few specific facets of society, and they have little to no resemblance to the law as we know and understand it today. Additionally, most of those laws were passed down verbally, and now there are very few written recordings of them.


The nation had united into a single monarchy by the 10th century. Shires, which were further split into "Hundreds" (in the south and midlands) and "Warpentakes," were the main divisions (elsewhere). Every area had a separate, autonomous local court. Despite occasional efforts (by kings like King Alfred) to establish a uniform national legal system, courts continued to operate in accordance with regional laws and traditions.


Different regional norms were incorporated into the local courts' interpretation of the law. In Kent, the Gavelkind custom provided that the land would pass on intestacy to all the sons equally. For instance, the ancient custom of Borough English, which was found in Nottingham and places in Sussex and Surrey, stated that where a landowner died intestate (i.e., without having made a will), the land passed to the youngest son instead of the eldest son. Some of these regional practises persisted up until 1926!


1066 - 1485


With the Norman Conquest, the transition away from a regional legal system began. The Conquest did not, however, result in any immediate, drastic change. Nothing in the new Kingdom that operated and maintained order was changed by William I or his successors. Thus, the traditional structure of Hundred Courts and Shire Courts continued. The Norman Conquest did, however, provide England a strong, centralised administrative structure and, as a result, a whole new form of national governance. England changed from being a tribal society to a feudal one.


THE KING’S COURTS


Following the Norman Conquest and the establishment of the new feudal order, the potential of the King administering a centralised system of justice arose. In the beginning, the King only used "High Justice," or his personal authority, in a very small number of cases, often in which he or she was directly involved and when the traditional localised form of justice would not be effective. As a result, only the most powerful individuals in the nation had access to the King's Court, also known as the Curia Regis (King's Council). This allowed the King's Courts to coexist with the municipal courts due to their narrow scope of authority.


A corps of semi-proficient, skilled clerics assisted the King in the administration of justice (part of the royal entourage). These clergy finally assumed the responsibility of making decisions on their own, separated themselves from the King, and established themselves at Westminster. The Magna Carta of 1215 mandated the creation of a permanent King's Court. As the King's Court matured, other "branches" of the court emerged to handle various sorts of disputes.


THE THREE COURTS


The Court of Exchequer, which oversees royal finances, followed by the Court of Common Pleas, which deals with land title and possession, and finally the Court of King's Bench, which handles major criminal cases, all grew out of the King's Council. The Judicature Act of 1873 did not affect these courts.


ASSIZES


To ensure the administration of law outside of London, royal judges were sent to the provinces with a royal commission to convene "assizes" (or sittings) of the royal courts. Initially, the Assize Courts' authority was limited to criminal proceedings, but it was eventually expanded to include civil concerns. The Assize Courts existed until the Courts Act of 1971 was passed.


OTHER COURTS


Four times throughout history, a court known as the Court of Exchequer existed. Its purpose was appellate (dealing with appeals), and its authority was passed to the Court of Appeal in 1875, when it was disbanded.


THE COMMON LAW


The formation of the King's Courts resulted in the implementation of a consistent system of law based on the country's common customs, thus the title 'common law'. This was especially true with the foundation of the assizes and the ability to apply the law of the King's Courts across the nation. The expansion of the new system was contingent on the expansion of the King's Courts and their ultimate dominance over the local courts. This was not an easy task.


The local barons opposed the growth of the King's Courts because they saw it as a danger to their authority, which was often exercised via the local courts. Despite this, the expansion of the new system persisted. During the reign of Edward I, it was firmly established and acknowledged as paramount over all local courts.


You may encounter a variety of usages of the word 'common law,' thus it is helpful to know what it means. These are listed below:


  1. the law as found and applied by the royal courts of common law as opposed to the law applied by the local customary court;

  2. the law as applied by the King's common law courts as opposed to the rules of Equity, i.e. a system developed by the separate court of Chancery;

  3. the entire body of case law as opposed to statute law; and,

  4. In contrast to the standards of equity defined by the distinct the law adopted by common law nations (such as Commonwealth countries to whom the English legal systems were transferred) against those of civil law countries (eg, most of continental Europe), which are based on the Roman law.

THE WRIT SYSTEM


The writ system was an integral part of the 'new' common law system. There was no automatic right to access to the King's Courts' justice. Until 1875, there was no such privilege. Because it was necessary for the courts to become involved, an intended claimant had to acquire a writ of summons.


PURCHASING A WRIT


The writ obtained by the Chancellor was a royal summons for the defendant to appear before the court. The writ also included the basis for the complaint, and a distinct kind of writ was used for each cause of action, or basis for the complaint.


However, the rigidity of precedent soon took over, and if a claimant could not locate a previous writ that covered his circumstance, he had no claim that the court would hear. Thus, the rules of process, which necessitated the existence of an existing form of action, stifled the development of substantive law.


EARLY CLAIMS (OR WRITS)


REAL ACTION


A real action was a judicial proceeding for the recovery of land under common law. This is in contrast to a personal action when damages were the remedy. The first form of real action was the writ of right, which was an order from the King directing the feudal lord to trial a dispute over the ownership of freehold property in the feudal lord's local courts. The dispute would be addressed by a trial by combat in which the parties would participate in physical combat.


In the second part of the 12th century, when Henry II founded the Grand Assize, the royal judges obtained complete power over the writ of right. This provided the defendant the option of submitting to a trial before 12 knights in lieu of engaging in combat.


Henry II advanced the notion of the jury trial by establishing the Possessory (or Petty) Assizes. These Assizes did not make pronouncements of absolute title, but instead judged disputes based on who looked to have a stronger claim to ownership. From this derives the contemporary understanding of land title as being relative rather than absolute and dependent on possession rather than ownership: in this sense, possession is indeed nine-tenths of the law.


PERSONAL CLAIMS


The first common law suits were:


  1. Debt: a claim for a certain amount of money in exchange for a completed consideration (signed undertaking).

  2. Detinue: a request for the restitution of a particular item that was improperly held onto (with the option of damages in lieu).Debt and contingency were triable by "wager of law," or by witnesses who attested to the defendant's character as evidence that the claim was unfounded.

  3. Covenant: An action for damages brought because a man's pledge made in writing, or by conduct, was broken. No thought was required. The covenant idea—a pledge written into a deed—remains of the highest importance.

  4. Account: At the moment, this is often more of a procedural than a substantive remedy. It was used to require a party to provide the claimant an account for any funds received on the claimant's behalf, such as a bailiff who collected rent on the claimant's behalf.

  5. Trespassing on someone's person, property, or commodities Damage that was inflicted directly, as opposed to indirectly or against intangible rights like reputation, was covered under the definition of trespass. Trespass was seen to be so terrible that it might be tried even in the absence of evidence of damage (per se). It might be tried in the court of King's Bench before a jury. From trespass have practically all contemporary causes of action evolved. Trespassing is largely responsible for the development of contemporary causes of action.

  6. Case: In the event that a recognised action failed to provide a cure, this was employed. The majority of current tort law, including annoyance, malicious lying, inciting breach of contract, libel, slander, deception, and negligence, was established in response to cases.

PROCEDURES AND WRITS


One illustration of how the common law system became constrained by intricate and onerous processes is the forms of action and the writ system. There was a matching defined protocol for each writ that specified the actions to be taken. The action would fail if the incorrect writ was chosen or the proper process wasn't followed. The fundamental issue was that the common law did not address how to determine a person's rights and obligations.


This strategy was chosen because the common law was only ever intended to be a method of dispute resolution. The system was never founded on the idea of determining who was in the right. The Courts were established as a result of the consolidation of royal authority, with the intention of putting an end to conflicts rather than necessarily doing so in a fair manner. The common law also only provided damages as a remedy in personal proceedings, which was a concern. The equity system was created as a result of the common law's shortcomings.


1485-1832


EQUITY


The norms of equity were created during this time period in an effort to address the issues with the common law system. Since the common law often failed to uphold the rule of law, petitions were made to the King, whose coronation oath included the promise "to exercise equal and proper justice and discretion in mercy and truth." As "guardian of the King's conscience," the King eventually established the custom of referring these appeals to the Lord Chancellor for a judgement. The Court of Chancery, a distinct court, was where the Chancellor presided at the end of the 13th century. The set of guidelines and procedures that the Court of Chancery followed prior to the Judicature Acts of 1873–1875 is known as equity. In Dudley v Dudley (1705) Prec Ch 241, at page 244, Lord Cowper said:


".. now Equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness and edge of the law, and is an universal truth; it does also assist the law where it is defective and weak in the constitution which is the life of the law and defends the law from crafty invasions, delusions and new subtleties, invented and contrived to evade and delude the Common Law, whereby such as had undoubted right are made remediless; and this is the office of Equity, to support and protect the Common Law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law nor create it, but assist it."


CHARACTERISTICS OF EQUITY


The Lord Chancellor had the authority to make decisions based on his own sense of justice without adhering to the stringent norms of process established by common law. The Chancellor's choices have a clear moral component. The Chancellor was formerly a priest. He had had a religious education, thus he was familiar with the fundamentals of Roman and Canon Law. The Chancellor first made choices based on his own conscience without taking preceding judgments into account.


Selden, a commentator, said that if the Chancellor's conscience served as the standard for equality, then one may as well equate a foot's measurement to the Chancellor's foot. However, throughout time, especially in the 17th and 18th centuries, principles did evolve. Richard Francis penned and published the following equity maxims in 1727:


  1. ‘equality is equity’;

  2. ‘equity looks to the substance not the form’;

  3. ‘he who comes to equity must come with clean hands’, ie, claimants must not themselves be in the wrong.


It is also important to remember that claims in equity could not be rejected on the basis of a mere technicality since the Court of Chancery lacked the writs and formal papers that were present in common law courts. Later Chancellors were lawyers who were used to relying on the common law counterparts' rule of "stare decisis" (leave the judgement remain). As a result, equity established its own unique set of regulations and precedents.


Equity cannot stand alone as a distinct and comprehensive legal system, as Maitland put it, "a gloss on the common law." The fact that equity and the common law were subsequently governed by the same courts was undoubtedly proof of how closely related the two systems were.


THE TRUST


Landowners required someone to take care of their properties while they were away fighting in the Crusades, taking care of feudal obligations like collecting rent. The practise of leaving the inheritance to a dependable friend with the understanding that they would utilise it for the benefit of the deceased owner's family came into being. There have been instances when the transferee has used his legal ownership of the property to his advantage while disobeying the conditions under which he was granted the land.


The common law courts refused to acknowledge the rights of the absent owner and his family on the grounds that they lacked locus standi (standing or interest) in the King's Courts due to their lack of a legal interest. The transferee would be required to keep the property for the use and profit of the absent owner and his family, but the Chancellor may step in on moral grounds and force them to do so. The foundation for contemporary trust was laid by this.


EQUITABLE REMEDIES


Damages were the only recognised remedy under common law. By permitting the award of new remedies, the Court of Chancery overcome a number of challenges in the common law procedure: A court may issue an injunction to prevent or stop the performance of an act, a specific performance order to compel someone to fulfil a promise or agreement, a revocation order to put the parties back in their pre-contractual position, and a rectification order to correct a written agreement that does not accurately reflect the terms agreed upon in order to give effect to the parties' agreement. Every equitable remedy was discretionary.


CONFLICTS WITH THE COMMON LAW


The equity system and the common law courts eventually came into conflict. Due to the origin of the equity system, the battle nearly turned into one between Parliament and the King. Particularly, Lord Ellesmere, the Chancellor at the start of the 17th century, had a propensity to characterise any criticism of him as an assault on the monarchy. The Court of Chancery's rulings were not immediately enforceable, but they became effective if the offending individual could be jailed or had his property seized. The fact that the common law lawyers decided that anybody resisting such enforcement actions, even to the point of murdering a Chancery officer attempting to carry them out, was acting in legal self-defence shows the intensity of the struggle, for instance.


Lord Ellesmere was in charge of enraging the common law judges at the height of the dispute by allowing matters that had previously received a ruling in common law courts to be heard in the Court of Chancery. Lord Coke, the Chief Justice of the King's Bench, retaliated by releasing prisoners held under habeas corpus by Lord Ellesmere for violating injunctions, and then he urged his supporters to bring legal action against their rivals for the crime of challenging the rulings of the King's Courts in the Court of Chancery. When one of these litigants tried to prosecute the Chancellor, it backfired.

Sir Edward Coke

This resulted in the Earl of Oxford's Case Mich 13 Jac 1 [1615] referring the dispute to the king, James I. James I decreed that equity should always take precedence over common law in disputes. The Judicature Act of 1873–1875's Section 25 codified this norm, which is presently included in Section 49(1) of the Supreme Court Act of 1981. However, there were to be no more intrusions into the operations of the common law courts, and the Court of Chancery was to exercise restraint by making decisions in accordance with its earlier decisions. Additionally, this disproved the claim that the equity system was wholly arbitrary. The fact that Lord Ellesmere passed away in 1616 and his successor made a point of mending everyone's fences also helped to soothe the situation.


The dual framework that was essentially established in the years after 1615 still remains in English law. The common law and the laws of equity still make up English law today. Up until 1875, equity was distinguished by the fact that it was only used by one court, the Court of Chancery.


The existence of two legal systems caused issues for litigants. Originally, two actions would need to be filed: one at common law and one in chancery, if both an equitable remedy and damages were desired. Common law courts were given some authority to provide equitable remedies by the Common Law Procedure Act of 1854. The Court of Chancery has the authority to impose damages in place of an equitable remedy according to the Chancery Amendment Act of 1858.


1832-PRESENT DAY


THE JUDICATURE ACTS 1873-1975


These statutes eliminated the previous divide of the three common law courts and the Court of Chancery in favour of establishing a single High Court and Court of Appeal that could apply both common law and equity principles and remedies equally. When there is a dispute, equality still wins.


Trusts and land law continue to depend on the difference between common law (legal) rights and equitable (or benefit) rights. While common law damages are still accessible as a matter of right, equitable remedies remain discretionary.


THE 19TH CENTURY REFORMS


Overall, the reforms of the 19th century were a process of rationalisation and consolidation rather than innovative innovations like those of the decades before. The writ system was abolished as part of these changes.


Due to the closure of municipal courts, plaintiffs were obliged to file even small claims in one of the King's Courts, which was expensive and time-consuming. Before the County Courts Act of 1846, early efforts to close the gap were unsuccessful. As a result, there is now a network of 500 county courts. Their authority was formerly restricted to matters with a maximum value of £20.


Additional steps were taken in the 20th century to modernise and simplify the courts and their processes, probably most notably in the Courts Act of 1971. This Act established the Crown Court at a variety of places around the kingdom, abolished the Assize system, and eliminated the few local courts that were still in operation, if only technically.


LEGISLATION


With a massive increase in legislation, the Victorian era also gave rise to the contemporary legislative age. To implement these new regulations, new courts and entities, such the Social Security Appeal Tribunals and the Employment Appeals Tribunal, have been established in response to the changing character of society.


THE PRIMACY OF PARLIAMENT IN LEGISLATION


Dicey publicly acknowledged this in "The Law of the Constitution," published in 1885:


"the very keystone of the law of the constitution [is that] Parliament...has...the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."


The 1965 War Damage Act served as an example of Parliament's power. The House of Lords' decision in Burmah Oil Ltd v. Lord Advocate [1964] 2 All ER 348, which compensated the crown for losses incurred during the Second World War, prompted the passage of this. The Act declared that the Crown was not and had never been subject to such obligation, and that Parliament had the authority to void a judgement in the past.


Another example is the British Railways Board v Pickin [1974] 1 All ER 609 , which dealt with what happened to the property after a railroad line was discontinued. Previously, it was given to the landowners on each side of the railroad, but the Act stipulated that it should be given to the British Railways Board. Pickin, the owner of property next to a railway line, filed a lawsuit claiming that the Act was unlawful on the grounds that the British Railways Board had deceived Parliament and that Parliament's own procedural norms had not been observed. The House of Lords ruled that the courts lack the authority to scrutinise parliamentary proceedings and, as Parliament's subordinates, cannot declare a legislative act illegal.


THE EUROPEAN COMMUNITIES ACT 1972


The United Kingdom's accession to the European Community constituted a significant alteration to the English legal system in the 20th century. According to section 2(1) of the ECA, EU treaties and laws are directly applicable in the United Kingdom. This gives EU legislation precedence. This has led to uncertainty in the UK courts, since EU legislation and Acts of Parliament have conflicted on a number of occasions, and those who depend on the treaty may argue that the treaty must be given effect under the ECA 1972.


THE HUMAN RIGHTS ACT 1998


The Human Rights Act, which gained Royal Assent on November 9, 1998, is nonetheless now in effect in the United Kingdom. The Human Rights Act will go into full effect on October 2, 2000. This Act will integrate into British law the European Convention on Human Rights (ECHR). In contrast, a Bill of Rights would have be exhaustive. Despite the fact that it would also encompass social and economic rights, such as housing and work, it is seen by many as a good first step towards a Bill of Rights.


The Human Rights Act of 1998 has a "affirmative resolution mechanism" is what Lord Irvine refers to, and it is used when deficient British law violates human rights, or when, due to the lack of legislation, these types of cases have been limited to the higher courts. The goal of this measure, as stated by Lord Irvine, is to allow citizens whose human rights have been violated to seek recourse in domestic courts and “Bring home the rights" avoiding the long journey to Strasbourg.


The incorporation of ECHR is to weave it into the existing fabric of legislative, executive, and judicial responsibility. There is also the possibility of establishing a Human rights commission, whose duties will include scrutinising legislation, bringing individual test cases to court, producing papers, and educating the public. The Human Rights Act of 1998 is an excellent first step toward a Bill of Rights. A potential second step in adopting a Bill of Rights would be to partially enshrine the ECHR so that it may be considered constitutional.


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