The origins of the common law system :

The defeat of the Anglo-Saxons by William I in 1066 is often cited as the beginning of the English
legal system. William I built a strong feudal system with the king as its head. Although local
assemblies, geographical divisions, local and seigniorial courts continued to function more or less as
before, making decisions grounded in local and regional customs, the legal system gradually began to
be modified. Institutions and procedures were created. The king and his 'court' developed into royal
courts that in turn developed into common law courts.

These courts and their judges were based in Westminster or traveled over the country. They discussed
cases and solutions together, chose the 'best' custom to apply or created new solutions. The solutions
that the decisions were based on began to be the solutions used by other royal judges in similar cases.
This led to uniform solutions that, with time and repetition, became law. This formed the law that the
royal courts used and propagated throughout the country, the law that was common to them all: the
common law.

The Genesis of the Common Law Legal Tradition: English Middle Ages

Section 1:

The Common Law tradition began in England and later spread to countries that were conquered and
colonized by Great Britain. This was the case with the territory now known as the United States. In
order to obtain a proper understanding of the American legal system, it is necessary to study these
origins. Without trying to trace England's entire legal history, this work explains briefly key historic
developments, particularly concentrating on the institutions created or developed during the Middle
Ages. This allows the reader to better understand English and present American law. The reader must
be aware, however, that in reviewing English legal history, not all events are clear or linear.

Early English law consisted mostly of unwritten customs that often varied from one community to
another. There were nevertheless solutions found to resolve conflicts that were similar throughout
certain regions, although there was no common set of customs in existence during this period.

Rome controlled most of England for nearly four centuries. However, it did not impose its
sophisticated legal system on the Celts. Its laws were enforced mainly on Roman citizens living in the
English territory. Although it is often said to have left little mark on the English legal system, some of
Roman law influenced many of the cities that would later be established. After the Romans' departure
in 410 AD, a long period of confusion followed. The invading races were very different from the Celts
and brought with them their own languages, religions, and traditions. The Angles, Danes, Jutes, and
Saxons occupied the land, and unwritten customs were the predominant law, although some written
law was discovered. An early example of legislation is that adopted by King Aethelberht I of Kent in
600 A.D.

The Danish invasion helped unite the Anglo-Saxon peoples to fight against their common enemy.
King Alfred of Wessex (d. 899 AD) used this opportunity to unify the country. In the prologue of the
code that he promulgated, it was stated that he and his advisers had studied the law of King
Aethelberht of Kent, Ine of Wessex, Offa of Mercia, and the Bible before beginning their task of
writing it. This may have been the first attempt to compare the different customs of England.
However, this written law was limited since it usually applied only to areas that were not already
regulated by local customs. This did, however, set a constitutional precedent for Royal legislation that
was followed by the kings' successors such as the Danish King Cnut or King Edward the Confessor
(J.H. Baker, p. 3). Nevertheless, England was not ruled by one common law: local customs and
traditions were still predominant.

Procedures for resolving conflicts existed also, and these were often used and developed after the
conquest by the Norman kings. In the 10th century, England became more unified, and the shires,
counties, and hundreds (English geographical divisions) played an important role in governing the
land and administering the law. And although kings, with time, issued written instructions bearing the
king's seal to the lords or to their reeves, what was lacking were uniform laws for all the land and
centralized jurisdictions.

B. Norman Conquest

Many legal historians place the beginning of the English legal system in the year 1066, when the
Normans, under William I, defeated the Anglo-Saxons in the Battle of Hastings. This event not only
began a transformation of the English legal system from one based on local traditions and customs to
one of common law but also modified the social and cultural landscape.

William I, the Duke of Normandy, along with his Norman knights, took over the entire country. It is
difficult to know if the Norman invasion entirely transformed the social structure that existed before
or if the transformations were less radical. Some authors are convinced that the English social profile
was dramatically changed—that the Normans brought feudalism. Others feel that Anglo-Saxon
feudalism already existed and that its style of feudalism continued for many years after the conquest.
This debate is better left to historians.

What is certain is that the new rulers were a different people, speaking a different...

For the most part, the Anglo-Saxon aristocracy was replaced. The country became divided into two
nations: the Franci, the minority who governed, and the Anglici, the great majority of the people that
were governed. These two peoples only became merged at the end of the 12th century.

If it is true that some form of feudalism existed before the Norman Conquest, it is also true that the
event brought to England a more definite form of feudalism that dominated the entire society. William
I treated his opponents as rebels. He claimed all the land for the Crown and then divided it in fee
between his most loyal followers. These people swore loyalty to the king and offered services and/or
money to him. This created a tightly formed feudal system with the king as its "supreme feudal lord"
(K. Zweigert, H. Hötz, p. 182).

The Normans were not a literate people; they were militarily minded, having great organizational and
administrative skills. These talents permitted them to transform, in time, the English social and legal
system. Nevertheless, William I did not attempt to upset the country by forbidding the people their
laws.

William I was in an extremely hostile environment. He and his successors realized the importance of
not exacerbating the situation by taking local customs away from the people. (Even if they had wanted
to do so, the Normans had no legal culture of their own to replace the local customs.) They also
realized the importance of keeping certain Anglo-Saxon institutions. These institutions, existing
before the conquest, could be modified and developed to suit the Norman mentality. One such
institution is the shires, which were governed by the reeves under the king’s authority (the term shire
reeve later became sheriff). One can also mention the local assemblies (such as the shire courts and
the hundred courts) that also acted at a judicial level. It is important to remember that there was no
separation of power at that time, and most people having official authority conducted judicial as well
as administrative business.

More importantly, England was already unified. This national unity was an exception in Europe.
William I kept the Anglo-Saxon tradition of kingship, but he went further, as we have seen, by
claiming all land to belong ultimately to the monarch. (This concept of land belonging to the Crown
still influences English law today.) This land could then be distributed to those who pledged loyalty to
the king. William I was thus the highest of the lords. Although the constitutional concept that justice is
a prerogative of the Crown may have been perceived before the Norman Conquest, this concept took
full effect under William I. It was soon recognized that peace in the realm was essential for collecting
taxes and other fees, since lords who needed money to pay for their own battles had less to contribute
to the Crown. The king's peace thus became the responsibility of the monarch.

However, during the reign of William I, the separation of the two cultures, Anglici and Franci, the
diversity and number of courts that existed, did not lead to the actual development of common law.
This began to take a distinct form in the 12" century under the strong governance of the Norman kings
and then by their Angevin successors. Particularly during the reign of Henry lI (1154-1189), the
common law emerged as the principal legal source of the country.

2. From customs to common law

A. The Royal Courts

The English court system was not simplified after the Norman Conquest. The courts of the hundreds
and shires continued to exist, alongside the occasional appearance of other local courts. Added to
these were the feudal or seigniorial courts, which dealt primarily with matters concerning the lords
and their vassals. Ecclesiastical courts also existed.

One therefore finds a combination of the old English system with Norman practices, which had a
more continental approach. Nevertheless, despite this diversity of jurisdictions applying different
laws, customs, and traditions, the foundations of the common law were being laid through the
formation of the royal courts.

1. Curia Regis

Although most legal matters were handled by the various local or seigniorial courts (courts of the
feudal lords), the king and his advisors took a direct interest in any question concerning what could be
considered royal business. This, of course, included all matters related to royal property. Since the
king was the protector of the peace, breaches of peace could also be taken directly to him.

Medieval kings surrounded themselves with their most loyal followers, who acted as ministers with
roles such as chancellor or treasurer. These ministers advised the king on important matters in council.
The king and his council were called the Curia Regis. As the principle of separation of powers did not
exist at the time, these councils acted in legislative, executive, and judicial capacities. The king
presided over these meetings, which were therefore called the "royal court" (la cour du roi).

Medieval kings did not remain in one place but traveled throughout their territory. Their advisors
followed them, ensuring that royal justice could be dispensed throughout the land. Over time, cases
would be referred directly to the chancellor, who would assign them to the appropriate judge. As early
as the 12th century, there was a trend towards forming a body of administrators who remained in one
fixed location—generally at the Palace of Westminster. Over the next two centuries, the judicial
function of the Curia Regis led to the formation of institutions that would become the principal
instruments of the common law.

2. Formation of the Royal Courts

Judicial institutions gradually emerged from the Curia Regis, even in the king’s absence. This led to
the establishment of three main courts:

●​ The Court of Exchequer

●​ The Court of Common Pleas
●​ The King's Bench

The first to separate from the Curia Regis was likely the Court of Exchequer, which handled financial
matters. Under Henry I, the Exchequer functioned as an independent court, maintaining its own
distinct records, known as rolls. Initially, it applied both common law and equity, but by the mid-14th
century, it ruled solely based on common law.

Other matters, particularly land disputes, also attracted the attention of the Curia Regis, as
landowners’ legal problems could impact the Crown’s fiscal interests. Consequently, the king and his
council became involved in civil cases and, due to the concept of the king’s peace, criminal cases as
well. This ultimately led to the formation of the Court of Common Pleas and the King's Bench.

B. The itinerant royal justices

From an early period, kings sent royal justices (judges) and commissions to different parts of the
country to try certain cases on an ad hoc basis. However, it was not until this procedure became
systematic that the common law could develop and establish itself as the law of the land.

This process officially began during the reign of Henry II, a period marked by a significant increase
in violence throughout the kingdom. Determined to address this issue, Henry II sent royal justices to
hear criminal cases, particularly those involving serious crimes such as murder. These justices also
dealt with cases concerning unjust dispossession of land, as land was the primary means of
acquiring wealth and social status at the time. Just as financial security is crucial today, land
ownership was essential in medieval society (R.C. Van Caenegem, p. 40-41).

Thus, through his itinerant justices, Henry II efficiently reduced this "social plague" while
simultaneously increasing his own popularity among free men (ibid.). Due to the efficiency of this
royal justice system, even civil cases with only incidental criminal issues were increasingly brought
before these justices.
Cours 1 :

What is law ?

Law is a broad notion which is impacted by different realities and ideas.

​
Black’s Law Dictionary states that: “law is a body of rules of action or conduct prescribed by
controlling authority, and having binding legal force. That which must be obeyed and followed by
citizens subject to sanctions or legal consequence is a law.”
​
However, this can be contested.​

The Marxist Theory of Law was developed by Karl Marx and his fellow as well as friend Friedrich
Engels.​

Marxists claims that law is the product of economic forces.​

Legal relations as well as forms of the State could neither be understood by themselves, nor explained
by the so-called progress of the human mind, but they are rooted in the material conditions of life.​

Law is a tool of the superstructure of the ruling class to maintain its powers over the working classes.​

Law will wither away in a society where social classes do not exist (communist society).​

RECAP :

The way in which law is defined depends on the perspective that is adopted.
​
The issue of what are the legitimate sources is key to all these controversies.
​
Different visions of law usually compete in the same societies but some become more prevalent that
others due to different factors.
​
Legal positivism, despite its limits, plays a very important role in the understanding of modern and
post-modern societies. It places more emphasis on the state as the central law-producer.

Distinguishing legal systems, legal cultures, legal traditions/families :

Historical jurisprudence
Historical Jurisprudence examines the manner or growth of a legal system. It deals with general
principles governing the origin and development of law and legal conceptions.​

As we observed from the sociological school of thought, law and legal institutions are inherently
interlinked with the society. Hence, law can also be perceived as a product of social history. ​

Savigny for instance contends that law is not the product of direct legislation. It is instead the outcome
of the silent growth of customs or unformulated public or professional opinions. ​

Law is a combination of social experiences and changing habitat.​

Legal system

A legal system is an operating set of legal institutions, processes and rules.​

In a world organised into sovereign states, each states has it’s own legal system.
​
Therefore the legal system is national or state based. ​
“ The world “law” often refers only to rules and regulations. But a line can be drawn between the
rules and regulations themselves and those structures, institutions, processes that breathe life into
them. This expanded domain is legal system ”, ​

Lawrence M. Friedman, Grant M. Hayden, American Law: An Introduction (2017:7) ​

Legal culture

Legal culture refers to people’s attitude towards the law and the legal system. ​

This concerns their beliefs, values, ideas, and expectations regarding the legal system.

These ideas and attitudes are what makes the daily functioning of a legal system.

Legal culture is a sub-category of (social) culture.​

Legal culture

“ Legal culture, in others words, is the climate of social though and social force that determine how
law is used, avoided or abuse. Without legal culture the legal system is inert – a death fish lying in a
basket, not a living fish swimming in the sea”.

Legal tradition/family ​

No two legal systems are identical. ​

Each is specific to its country. ​

When two countries are similar in culture there legal systems are likely to look alike. ​
Legal systems can therefore be grouped under specific categories or clusters that are called “legal
traditions/families”.​

When they have important traits of culture, structure, and substance in common. ​

COURS DIAPO :

Narural law :
1)​ Law is the “Command”​

A general body of norms that prohibits or permits certain conduct.​

2)​ Stated by the “Uncommanded Commander”​

It is issued by sovereign bodies or individuals.

3)​ Carries a “Sanction”​

Law includes punishment and rewards.​

Sociological jurisprudence ​:
-​ A change in the society impacts the law.​
-​ Law is what is in the society and not what the state decide ​
-​ Legal rules must reflect societal realities and concerns​

Marxist School :

The Marxist Theory of Law was developed by Karl Marx and his fellow as well as friend Friedrich
Engels.​
Marxists claims that law is the product of economic forces.​
Legal relations as well as forms of the State could neither be understood by themselves, nor explained
by the so-called progress of the human mind, but they are rooted in the material conditions of life.​
Law is a tool of the superstructure of the ruling class to maintain its powers over the working classes.​
Law will wither away in a society where social classes do not exist (communist society).​

Distinguishing legal systems, legal cultures, legal traditions/families :

Historical jurisprudence

Historical Jurisprudence examines the manner or growth of a legal system. It deals with general
principles governing the origin and development of law and legal conceptions.​

As we observed from the sociological school of thought, law and legal institutions are inherently
interlinked with society. Hence, law can also be perceived as a product of social history. ​

Savigny for instance contends that law is not the product of direct legislation. It is instead the outcome
of the silent growth of customs or unformulated public or professional opinions. ​

Law is a combination of social experiences and changing habitat.​

Recap :

The way in which law is defined depends on the perspective that is adopted.
​The issue of what are legitimate sources is key to all these controversies.
​
Different visions of law usually compete in the same societies but some become more prevalent than
others due to different factors.
​
Legal positivism, despite its limits, plays a very important role in the understanding of modern and
post-modern societies. It places more emphasis on the state as the central law-producer.

Distinguishing legal systems, legal cultures, legal traditions/families :

Legal system

A legal system is an operating set of legal institutions, processes and rules.​

In a world organised into sovereign states, each state has its own legal system.
​Therefore the legal system is national or state based.
“ The word “law” often refers only to rules and regulations. But a line can be drawn between the rules
and regulations themselves and those structures, institutions, processes that breathe life into them.
This expanded domain is legal system ”, ​

Legal culture

Legal culture refers to people’s attitude towards the law and the legal system. ​
This concerns their beliefs, values, ideas, and expectations regarding the legal system.
These ideas and attitudes are what makes the daily functioning of a legal system.
Legal culture is a subcategory of (social) culture.​
“ Legal culture, in other words, is the climate of social thought and social force that determines how
law is used, avoided or abused. Without legal culture the legal system is inert – a death fish lying in a
basket, not a living fish swimming in the sea”.
​Lawrence M. Friedman, Grant M. Hayden, American Law: An Introduction (2017:7) ​

“Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally
oriented social behaviour and attitudes. The identifying elements of legal culture range from facts
about institutions such as the number and role of lawyers or the ways judges are appointed and
controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme,
more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is
about who we are, not just what we do”​​.

Legal tradition/family ​

No two legal systems are identical. ​

Each is specific to its country. ​
When two countries are similar in culture their legal systems are likely to look alike. ​
Legal systems can therefore be grouped under specific categories or clusters that are called “legal
traditions/families”.​
When they have important traits of culture, structure, and substance in common. ​

“ A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of
law in the society and the polity, about the proper organisation and operation of a legal system, and
about the way law is or should be made, applied, studied, perfected and taught. The legal tradition
relates the legal system to the culture of which it is a partial expression. It puts the legal system into
cultural perspective”. ​

J. Merryman, The civil law tradition: An introduction to legal systems in western Europe and Latin
America, (1984:2) ​

Legal tradition across the world

-​ Civil Law ‘droit romano-germanique’​
-​ Common Law​
-​ Socialist Law (it does not exist in its former nature)​
-​ Sacred-law systems (Islamic, Jewish, Hindu) ​
-​ Customary Law ​
-​ Mixed System​

Legal Traditions in Africa

An amalgamation of different legal systems​:

The African legal system is legally pluralistic. Hence, two or more legal systems coexist in the same
social field.
States that are civil law oriented:​
Former colonies of France, Belgium, Spain, Italy or Germany. ​

States that are common law- oriented:​

Former colonies of the UK.

Mixed legal traditions:​

South Africa, Zimbabwe, Botswana, Ethiopia, Mauritius, Liberia.​

Conclusion :

A European (continental) obsession?​

-​ Finding the right criteria. ​

-​ Complexities and cross-fertilizations in legal systems. ​
-​ Focus on the most important specificities of a legal tradition. ​

Diapo 2 :

Introduction
What is this session about ? ​

-​ Discuss the origin of the Common Law system ​

 -​ Examine the historical context in which it emerged ​
-​ Discuss the ways in which the Common law system evolved over time
-​ Give an overview of its influence

Definition
Specifically ​:
Common law is the body of customary law, based upon judicial decisions and embodied in reports of
decided cases, that has been administered by the common-law courts of England since the Middle
Age.

More generally​:
Common law refers simply to a system of law that was not made by parliament, but rather developed
in Courts. ​

Lexical origin ​

Commune Ley = Common Law ​

As opposed to “Local Law” which was specific to some region before 1066 ​
Before the Norman conquest there were only country courts or hundred courts that applied local
customs to decide on cases ​
Common law refers to the subsequent development in English law after 1066 and around the twelfth
century as opposed to civil law ​

Some historical benchmarks ​

1)​ 1066 is as a key benchmark = The Norman Conquest ​
2)​ The roman domination lasted 4 centuries in England (AD 43 to AD 410) = Gallic War of
conquest by Julius Caesar ​
3)​ After the Roman, there were multiples tribes that governed different parts of England ​
 4)​ This period is also known as the period during which Britons converted into Christianism
(596- Gregorian Mission/Augustine of Canterbury)

Law during the anglosaxon period

Anglo-Saxon law, the body of legal principles that prevailed in England from the 6th century until the
Norman Conquest (1066).
​
England was inhabited at that time by various tribes that include not only ”native tribes” but also by
the Saxons, Angles, Jutes, Celtic tribes that migrated from continental Europe​.

In conjunction with Scandinavian body of law + the so-called barbarian laws (leges barbarorum) of
continental Europe = Germanic law. ​

The region was politically under different kingdoms and shires.​

Most of the law was made of a mixture of customary practices and law written in the vernacular
(Anglo-Saxon). ​
The law was relatively free of the Roman influence.​
Roman influence on Anglo-Saxon law was indirect and exerted primarily through the Church.

There are some specific laws adopted by some kings but not well elaborated (Law of Ethelbert in the
7th Century or King Cnut code made of laws from kingdoms and canon law=1016-1036) ​
The Anglo-Saxon period did not have a set of common legislation to England as a whole and
therefore the law was primarily made of local customs and practices ​

Historical formation of the Common Law​

The Norman Conquest​

The Norman Conquest was the 11th-century (1066) invasion and occupation of England​.

The Conquest was conducted by an army made up of thousands of Norman, Bretons, Flemish and
other French provinces led by the Duke of Normandy, William the Conqueror​.

The Conquest was successful and changed radically the political landscape and administration of
England ​.

Feudalism in England ​
The Norman Conquest marked the beginning of Feudalism in England.​
The Britain society started looking more like ONE organized political and military state.​
With military forces and around a stratified formal structure. ​
Land tenure by a group of aristocrats is key in the social and political context. ​

The new invaders needed a strong political and administrative structure to govern as they were in a
foreign territory. ​
As occupants they needed to develop stringent rules for the sake of administration (listing of lands,
and families…) .

The Common Law system emerged from that specific context of the English feudal system.
The Emergence of Common Law
Before the formal emergence of Common Law ​
The Country Court was in charge of handing down decisions. ​

These decisions were based on local customs. ​

This system is maintained after the conquest although country courts are progressively replaced by
Court Baron, Court Leet, Manorial Courts) .

Ecclesiastical Courts created after the Conquest applied Canon Law. ​

What are the main characteristics of a feudalism ​

A system in which some people were given land and protection by people of higher rank, and worked
and fought for them in return”​.

A System is based on land exploitation through tenure. Tenant peasants with various ties to landlords ​.
Systems of fiefs and vassalage (decentralized authorities) .

Development of a centralized judiciary as the key factor of the birth of common law

Royal Courts played a critical role in unifying and making consistent the common law.
​
The new Norman Court assumed wide judicial powers, unlike in the Anglo-Saxon law where the king
would deal with only the great affairs of the state (Curia Regis).
​Its judges (clergy and statesmen) “declared” the common law.
​The royal courts seat in Westminster. ​

Royal judges went out to provincial towns “on circuit” and took the law of Westminster everywhere
with them, both in civil and criminal cases. ​
Local customs were not abolished but the royal courts controlled them and often rejected them as
unreasonable or unproved. ​
Common law was presumed to apply everywhere until a local custom could be proved. ​

This was a different situation compared to France, where a monarch ruled a number of duchies and
counties, each with its own customary law ​
As well as with that in Germany and Italy, where independent kingdoms and principalities were also
governed by their own laws.​
Common Laws then started referring to a centralized system of law different from local laws.​

Competence

By the 13th century, three central courts emerged within the Curia Regis —Exchequer, Common
Pleas, and King’s Bench—applied the common law.
​They were supposed to have competence on one of the following matters: royal finances; land
ownership; other property matters.
​
Eventually, the same law was applied in each court, they competed in offering better remedies to
litigants in order to increase their fees.

The writ system

The Royal Courts did not have a general competence and seisin of the Courts was a privilege not
everyone could afford.
​
The court machinery for civil cases was therefore built around the so-called writ system.
​
Each writ was a written order in the king’s name issued from the king’s writing office, or chancery, for
the complainant and ordering the defendant to appear in the royal courts or ordering some inferior
court to provide justice.
​
Royal writs had to be used for all actions concerning title to land.​

The writ system ( examples )

-​ Writ of habeas corpus (to have the body of)

-​ Writ of attachment permits the seizure of private property.
-​ Writ of capias directs an officer to take the person named in the writ or order into custody.
-​ Writ of elegit orders the seizure of a portion of a debtor's lands and all his goods (except work
animals) towards satisfying a creditor until the debt is paid off.
-​ Writ of praemunire instructs a sheriff to order someone to appear in court to answer for
several different crimes.
-​ Writ of scire facias revives a dormant judgment.​

The importance of procedure over substance :

This multiplicity of ways of seizing the Royal Court created a complex procedural system.
​
Each writ triggered a specific kind of procedure (or forms of actions) before the Court (specific
proceedings, possibility or not of being represented, admissibility of certain evidences, and
enforcement of the decision…).
​
Each form of action has almost its specific vocabulary = and this must be strictly applied.
​
Remedies precede rights = procedural aspects are more important than anything else. ​

Resonance in present times ​

Overreliance on procedure = “Common Law was born in the interstices of procedures” Sir Henry
Maine​
Many common law concepts are framed by this period. ​
The almost nonexistent line between private and public law. ​
The very limited influence of roman Law.​
Internal evolution of common law :

A few Courts were progressively put in place from the 14th century .

The 16th Century = New ways of thinking, more reliance on writing law; lawyers are more and more
trained in universities​.

Trained lawyers practically and not theoretically. The English law tradition depended not on abstract
scholarly commentaries but on detailed judicial rulings about specific points of law arising in practice.​

DEVELOPMENT OF COMMON LAW​

-​ Growing importance of statutory law ​
-​ Doctrinal systematization aiming at restating the common law in acceptable form (Coke;
Blackstone) ​​
-​ Court reports, Inns of the courts, Year books
-​ Equity became an important part of the legal system​
-​ Dualist structure of common Law (judicial precedents and Equity) ​

Common Law reforms from the 19th Century

​
The impact of liberal conceptions of the state.
​
Jeremy Bentham: An Introduction to the Principles of Morals and Legislation; Essay on the
Promulgation of Laws, Essay on the Influence of Time and Place in Matters of Legislation, A Table of
the Springs of Action, A Fragment on Government: or A Comment on the Commentaries; Principles
of the Civil Code; Principles of Penal Law, London, 1838-1848​

Development of Common Law

a)​ The growing importance of statutory law
b)​ Judiciary is reformed with the (Judicature Acts, 1873-1875) ​
c)​ The Consolidation aims at reforming the law and getting rid of old and archaic principles
d)​ Creation of law reports ​
e)​ More written laws (statute…) in the 20th Century

Expansion of common law

Expansion beyond england

Historically, the common-law system is limited to England​.

It also applied to Wales since 1536 .
Has directly influenced that legal system of Ireland.
But only partially influenced the distinct legal system in Scotland​.

-​ The USA and Canada​

-​ Commonwealth countries ​

Session 3 : Common Law: Core Concepts, Constitutional and Intellectual Framework

Introduction
The importance of legal concepts and categories

Definition
Legal concepts and legal categories are intellectual units, abstract representations to which a certain
legal consequence is attached.
Legal categories are related to specific legal regimes or areas of law
For instance: contract, marriage, property, force majeure, minority, majority, crime, marriage, state,
sovereignty, legal subjectivity, etc…

?
Concepts therefore serve to shape a legal system.
Knowledge of relevant Legal Categories aid in applying the right statute and case law and requesting
for a relevant remedy.

There is a substantial difference between common law and civil law systems when it come to legal
concepts and categories
The structural subdivisions in continental law (civil law) do not exist in common law (public law vs
private law; civil law vs. commercial law; administrative law vs civil law, etc…)

Common law has its own concepts, categories and subdivisions…

The Legal Categories in Common Law Traditions were developed by procedural history, subsequent
documentation of case law and production of legislative instruments.

“ (…) le plus souvent, quand on veut coûte que coûte les traduire {ces catégories}, et la difficulté
n’est pas moindre lorsque la chose paraît aller de soi: le contrat du droit anglais n’est pas plus
l’équivalent du contrat du droit français que l’Equity anglaise n’est l’équité française; administrative
law ne veut pas dire droit administratif, civil law ne veut pas dire droit civil, et common law ne veut
pas dire droit commun”
​ ​ ​ ​ René David, Grands systèmes de droit comtemporains (1988)
Focus of this session
Core concepts in common law
-​ Equity
-​ Trust
→The constitutional framework that shaped the system in the UK

Common law and Equity

-​ Definition
-​ Evolution
-​ Some equity principles (maxims)
-​ Relationships between common law and equity

​Définition :

Ordinary meaning = « The quality of being fair and impartial »

« Equity is a body of rules, the primary source of which was neither custom nor written law but the
imperative details of conscience and which had been set forth and developed in the Court of
Chancery.” (Henry Levery Ulman)

Equity refers to a particular set of remedies and its associated procedures to resolve a Civil Action in a
fair manner.

Equity developed as a distinct remedial system parallel to common law (made by royal courts)
This led to an iconic distinction in the Common Law Tradition between remedies at law and equitable
remedies

The application of ‘Common Law’ by the Statesmen led to the development of Common Law Courts.
However, the Common Law Courts were granted limited powers.
Therefore, they sought extra-ordinary judicial powers from the King by submitting a written request.
The King responded with a Writ which allowed Common Law Courts to adjudicate according to a set
procedure.

These Writs were designed to enable the Common Law Court to rapidly process the complaint.
Each Writ referred to a standard category which could be dealt by a standard procedure.
Any person seeking remedy from the Common Law Court was required to fit their circumstances in
one of the available Writs.
However, it was not always possible to categorise a circumstance in the available Writs.
Therefore, an unexplored or new circumstance could not be processed by the Common Law Courts.
“No Writ - No Remedy”

Origin and evolution of equity

Many types of actions were not accepted before the courts

Many cases were therefore left out of the Royal Court system or without a proper remedy or
ineffective remedies
The idea of seizing the Crown to act for redress (based on legitimacy, good moral, good conscience or
humanity)

Disappointed litigants had turned to the king with petitions for justice
These petitions were referred to the Lord Chancellor, who was the king’s principal minister.
By the early years of the 14th century the petitions were going directly to the Chancellor
By the middle of that century the Court of Chancery was recognized as a new and distinct court.
Example :

Non- performance of a contractual obligation is only sanctioned by damages before a common law
court. The form of action is called assumpsit or trespass which is another form of action (commit an
offence against someone)
Because of the impossibility to get the performance of the contract before common law court, the
chancellor may issue a “Decree of specific performance” which can urge one of the parties to perform
its commitment.
The remedy here is designed only as complementary to common law.

The Chancellor issued orders directed to the defendant

He may request a specific action (for the salvation of the defendant’s soul in the early conception of
his role = clerical role)
Non compliance is sanctioned by imprisonment or seizure of property
The jurisdiction of the Chancellor was governed by strict rules as he was competent only when he had
the necessary guarantee that his intervention will be effective

Example
Another example regarding contract law in common law is the free expression of consent
Duress (violence) is only taken into account as preventing a free expression of consent when it is
physical violence; no moral violence
While the common law court will be unable to sanction cases in which there was a morale violence,
the chancellor could use the so called “undue influence” doctrine to provide a remedy

Maxims :
“Equity will not suffer a wrong to be without a remedy”
Equity will intervene to protect a right that exist but cannot be performed due to a technical obstacle
before common law court
“He who seeks equity must do equity”
An applicant seeking equitable remedy must have acted with equity (with a sense of justice,
righteousness) towards its defendant

“He who comes to equity must come with clean hands”

An equitable remedy cannot be granted if the applicant themselves is not “clean”.
A landlord cannot seek performance of a rental contract if they took advantage of the illiteracy of the
tenant during the conclusion of the contract
“Equity looks to the intent rather than the form”
The process of equity is concerned with the substance and that prevail over formal considerations
If a contract has all the elements of a mortgage but was not formally given that name, equity may
impose to consider it as a mortgage

The Chancellor pronounced a decree in 1474 which made the Court of Chancery independent from
the King and his Council.
The Court of Chancery was recognised as a distinct court rendering equitable remedies.
Initially Court of Chancery was not bound by the precedents established by Common Law Court due
to its equitable jurisdiction

The Chancery and Common Law Courts rendered conflicting judgements due to the application of
different standards to reach a verdict.

These matters were referred to the King and his Council as the supreme authority. The King ensured
that equity prevails.

“When there is a conflict, equity shall prevail.”

However, the Court of Chancery was requested to not adjudicate on a matter unless the remedy was
unavailable or inadequate in Common Law.

Additionally, the application of equity was restricted by the doctrine of precedent.

Equity was then shaped into an established set of rules; used as a tool to fill gaps in Common Law

The Judicature Acts (1873-1875) which abolished the Separate Common Law and Equity Courts.
A departmentalised Supreme Court of Judicature was created and fused Common Law Courts and the
Court of Chancery.
Additionally, the Act rendered that Common Law and Equity could be applied by all courts

Key aspects of equity in Common Law Tradition

There are usually two types of remedies: remedies at law and equitable remedies (civil cases only)
Remedies at law are generally paid in some amount of money whereas equitable remedies result in a
court ordering one party to do an action. (a specific injunction).
Equitable remedies, unlike remedies at law, are granted at the sole discretion of a judge

“Equity is the means by which a system of law balances out the need for certainty in rule making on
the one hand, with the needs for sufficient judicial discretion to achieve fairness in individual factual
circumstances on the other”
Clements and Abass, 2009

Example
Your milk caw has wandered (entered) into your neighbour's property but your neighbour refuses to
return the caw
If you as a plaintiff decides to seek a remedy at law in a civil case, the judge may decide that your
neighbour must pay you just the monetary value of the milk caw.
You may want your milk caw back and not the compensation. You may therefore seek only an
equitable remedy and the judge will grant an injunction to return the milk caw.

Example
An employer and an employee sign a non-compete agreement. After the employee leaves the
employer, he breaches the contract by competing with his former company. A court may issue an
order of injunction, directing him to stop such competition.
The merger of law and equity in England was generally followed in most Common Law Countries
But this merger of Courts of common law and the chancery court did not reflect in the substance as
common law and equity remained substantially distinct in the Common Law Tradition
This distinction is very well kept in the UK, in the USA, in India, in Australia…
In the USA, the legal system of some states has maintained the two parallel system with still a
functioning Chancery Court (Delaware, Mississippi, Tennessee)

Core concepts :

Trust
Definition
The trust is a legal act in which an individual or a legal entity transfers assets and confers control of
these assets to another individual or institution on behalf of a third person.

“ The trust is a form of ownership of things (property), which allows someone to manage property for
someone else's benefit”

​ ​ ​ ​ Pearce and Stevens, Trust and equitable obligations (2015)

A legal relationship involving three entities :

The individual or legal entity who transfers their asset = the settlor
The person who receives the asset and manages it = the trustee
The person for whom the trust is managed = the beneficiary
The asset to be managed is the trust fund.

Various uses
Legal protection of incapable adults
Married women historically
Estate or inheritance planning
Company law, investment…
Charitable actions

“ It is correct to describe trust as a creation of equity”.

​ ​ ​ ​ Clements and Abass, Equity and Trust, Texts, Cases, Materials
(2009)

Main concepts in trust law

The legal regime of trust was shaped by equitable principles
Common law courts could deal with classic property issues but not the situation created under “trust”
=No form of action
The Chancery Court therefore developed a number of concepts to deal with various issues deriving
from trust relationships

Main concepts in trust law

-​ Types of trust (express and implied)
-​ Breach of trust
-​ Remedy for breach of trust
-​ Proprietary claim for breach of trust
-​ Election

Specificities
Trust is a specific concept to the Common law Tradition
→ There is no equivalent in the civil law
Its not classic ownership (droit de propriété) although it has some aspects of it.
It is not a fiduciary agreement (la fudicie)
It is not a donation (donation) which requires the beneficiary’s agreement
It is not an estate or will execution (exécution tesmentataire)
Its also not a Foundation (Fondation)

The (non)constitutional framework that shaped the Common Law Tradition

No codified Constitution
Parliamentarian supremacy
Rule of law
Separation of powers

Definition of a Constitution

A body of fundamental principles by which a state is governed

The Constitution creates and defines the powers of different bodies and determines how they should
relate to each other

It sets out the limits of these powers and regulates the relationship between the state and its citizens by
providing for and guaranteeing certain rights for citizens
No written constitution
The UK does not have a ‘written’ or ‘codified’ constitution
The UK does not possess a single constitutional document
The UK’s constitution is spread across a number of places

Constriction in other Common Law countries

The USA?
Canada?
Australia?
India ?
Kenya?

No written constitution
UK system has no clear concept of a ‘higher law’
There is no clear distinction (criteria) between what is constitutional and what is just regular law.
This also means there are no special procedures for changing the “constitution” itself in the UK

Where to find acts with constitutional value

-​ in some Statutes (acts of the Parliament)
Particular understandings of how the system should operate (known as constitutional conventions);
Various judge-made decisions

Statues with constitutional value

Constitutional conventions
Understandings about how the constitution functions
They require a wide agreement on a practice. Not legally binding per se but are the source of some of
the most important features of the UK system of government.
For instance, that the Prime Minister should be a member of the House of Commons able to command
the confidence of that institution is a convention

Rulings by judges
Established important features of the UK Constitution
Example: individual rights and the idea that public authorities are subject to limitations and do not
possess arbitrary power
“the executive cannot in law abrogate the right of access to justice, unless it is specifically so
permitted by Parliament; and this is the meaning of the constitutional right”, R v Lord Chancellor
(1998)

Parliamentarian supremacy
The legislative supremacy of Parliament (since what is known as the Glorious Revolution of 1688)
The idea of the legislative supremacy of Parliament is simply that
Parliament can make any law it wishes to make; and
only Parliament can unmake – or repeal – the laws it has made

Parliament (and not just the House of Commons) must pass the legislation.
The fact that the legislative power of Parliament is legally “uncontrolled” does not mean that it is
entirely free from any constraints
English courts have accepted that when Parliament passed some international Acts, it surrenders part
of its sovereignty
The Rule of Law
State bodies, especially the government ought to conduct its action according to the law
Governmental power is limited by law. The rule of law provides legal mechanisms for dealing with
complaints that the government has gone beyond those limits
Judicial review

Separation of powers
Legislative power involves making law
Executive power involves administering the law (government agencies and officials)
Judicial power involves interpreting and applying the law in the sense in which the courts interpret
and apply it.
Session 4 :
Sources of Law in the Common Law Tradition

Understanding the intellectual context and its impact on the legal culture

Legal traditions are impacted by the intellectual tradition in a specific society

This includes political, sociological and philosophical though in that society
The “intellectual culture” in a country is certainly not homogeneous and evolves over time; it has
however specific codes, points of reference and paradigms (episteme)
As part of such a general culture the legal culture certainly translates dominant ways of thinking
For instance, the concept of Maat is the key ethical source and cement of all legal principles in ancient
Egypt

Analytical vs. Continental philosophy

“The heart of the analytic/Continental opposition is most evident in methodology, that is, in a focus on
analysis or on synthesis. Analytic philosophers typically try to solve fairly delineated philosophical
problems by reducing them to their parts and to the relations in which these parts stand. Continental
philosophers typically address large questions in a synthetic or integrative way, and consider
particular issues to be ‘parts of the larger unities’ and as properly understood and dealt with only when
fitted into those unities.”
​ ​ ​ C.G. Prado, A House Divided, Comparing analytical and continental
philosophy (2003)

The role of legal theory, legal training especially through the universities was very limited in the early
period of the development of the common law system
In medieval times, unformal education in the common law was provided for legal practitioners by the
Inns of Court through reading and practical exercises

But the method declined; by late 16th century and middle of the 17th century there was virtually no
organized education in English law

In continental Europe
There was an important tradition of legal training through the study of rhetoric in the roman empire
Codification required expertise and Canon law was also thought, especially during medieval times and
the renaissance due to the influence of catholic church
Legal education trough formal university training started in France, for instance, as early as in the
12th Century
Paris (early 1100; Toulouse (1229), Montpellier (1289)
Avignon (1303), Orléans (1306), Cahors (1331), Grenoble (1339), Angers (1364), Orange (1365)
A great deal of this legal education was based on understanding and theorising roman law as codified
under Justinian code

The first lecture ever on English law in a University was given by the famous jurist Sir William
Blackstone at Oxford in the 1750s
University teaching of Common law did not develop significantly until the 19th century when
university-based legal education became an undergraduate programme
But legal training in this context remained essentially based on the knowledge of legal practice giving
raise to the so-called “case method”
This method in England and the United States emerged from and contributed to the maintenance of
the tradition of judge-made law

L’office de la loi est de fixer, par de grandes vues, les maximes générales du droit : d’établir des
principes féconds en conséquences, et non de descendre dans le détail des questions qui peuvent naître
sur chaque matière. C’est au magistrat et au jurisconsulte, pénétrés de l’esprit général des lois, à en
diriger l’application.
​ ​ ​ ​
​ ​ ​ ​ J.E.M, Portalis, Discours préliminaire du premeier projet de code
civil (1801)

“The function of legislation is to fix, through broad views, the general maxims of law: to establish
principles fruitful in their consequences, and not to go down into the detail of the questions which can
arise on each subject. It is up to the magistrate and the jurisconsult, imbued with the general spirit of
the laws, to direct their application”.

“England legal system is not based on legal principles derived from reason but instead made up of
disconnected aggregate of positive provisions, it is the product of crass ignorance of fox-hunters and
landed gentry”, G.W.F. Hegel, Political Writings, trans. Knox (1964)

Max Weber draws the distinction between « scientific law» on the one hand and «crafted law»
(wissenschaftlich; droit artisanal), the prime example of whom is common law according to him

Legal science vs Art of judicial decision-making, Subsumption vs analogy reasoning; Law vs facts
Main influence in common law jurisprudence (theories of law)

-​ Legal formalism

-​ Legal realism

The openly accepted policy approaches to the law ( New haven school of law)

Legal formalism :

Legal formalism refers to an approach to law that emphasizes the discovery of legal principles
through logical analysis, and the application of those principles to the facts of a case. (legal syllogism)

The application of the law should be done through a consistent set of legal rules to a given case and
sound legal decisions are the outcome of logical deduction

Legal formalism stands for the idea that law is essentially separated from questions of politics and
morality. The moral, religious or political desirability is not the law is not a criterion for its validity

Legal positivism is the expression of legal formalism and has been the dominant approach to law in
continental jurisprudence (Kelsen being the perfect representative of the positivist school)
Legal formalism does not fit easily in a context of common law tradition historically (in England
where statutory law is very limited)
However, the influence of continental thought and to some extent the American legal system based on
a constitution gave rise to the emergence of a considerable formalistic theory of law (jurisprudence)
Bentham, Austin and Hart…

Legal realism :

Legal realism is a movement originated in the US in the early 20th century (1920-1930) in opposition
to formalism
It is based on a criticism of alleged “rationality” “logic” or “ objectivity” of the law
According to legal realism law is not a logical system of rules but based on experience, felt necessity
of the time, dominant moral and political conditions, intuitions, and even prejudices which judges
share with their fellow-men (Holmes, the path of law, HLR, 1897)

Law is neither neutral nor logical

Judges faces interpretative choices (= rules scepticism and fact scepticism)
They make their decisions based on their interpretative preferences
Realism does not pretend to offer a new approach to the theory of law (it is not prescriptive) but to
unveil the conceal aspects of law (it is descriptive)

Policy approaches :

These approaches consider that law is made of principles and policies that must be applied by judges
when they make their decision
Law cannot be separated from morality and politics, it is intensely political
Judges have a large interpretive discretion; in using their discretion they must apply the best policies
based on the legal material

Policy approaches
-​ Dworkin
-​ The New Haven School
-​ Law is a policy-oriented process of decision-making rather than a set of rules;
Law is a part of the social fabric, and its goal is to promote specific “values”

Dominant policy approaches in the common law context have been often criticised as only promoting
one world view based on western liberal views of democracy, human rights, international politics…

Realism and policy approaches as fertile land for other theories of law :

The lasting effect of legal realism and policy approaches opened up the possibility of other schools of
thought in the legal literature
-​ Critical legal studies
-​ Feminist jurisprudence
-​ Critical race studies applied to law
-​ Law and economics
-​ Law and literature

Adjudication as a source of Law

​
​ « The common law, that is, the law formulated by ​ judges ruling in cases, is the source
of law that ​ differentiates this legal system from most other ​ systems »
​ ​ Eileen Servidio-Delabre, The Legal System of a Common Law Country, (2014), p.
260

Recap :
Common Law is a Legal Tradition which is based on verdicts or precedents given by public juries and
judicial authorities.
The verdicts, case law or “Precedents” serve as a foundation for any future court decisions in similar
cases.
Judges and judiciary have an enormous role in shaping Common Law. Hence, the law is less codified.

The rule of precedent: concept

The Rule of Precedent dictates that in certain circumstances, judges are required to follow previous
decisions.

Judicial precedent is a source of law where past decisions that judges made create law for judges to
follow in future cases.

Stare decisis is the doctrine behind

“stare decisis et non quieta movere”

To stand by decisions and not to disturb the undisturbed (that which is already settled)

To stand by that which is already decided

The rule of precedent : concept