 How the common law got developed in England?

 Civil law is more about statutes- which is a

roman origin Rule of law-All people are
 Common law is the mother of all legal system. subject to the law and that no one
 Indian legal system is actually a version of legal is above the law. It also means
system exist in U.K that the government must act
 Why rule of law is important in a society? within the law and not use its
 Mohr Bibi Vs. Damodar Ghosh-Important case in power arbitrarily. The rule of law
contracts. is a foundation for justice,
 The Norman Conquest of 1066-set the opportunity, and peace.
Fundamental principle in article
stage for
14.
est. a legal
system in
England.
- Basis of all
Magna Carta- a royal charter of development in the early Angelican legal system
rights that was signed by King is pvt. ownership of land-specifically the feudal
John of England in June 1215. It is
system.
considered a significant document
- King- Lord Tenant in chief-distribute lands to
because it established that the law
applied to everyone, including the the lords under him-hence the entire state system
king, and that the law was superior based on ‘several contracts’.
to all men. Some of the rights and - The two systems that existed in England after
principles established in the the Norman conquest
Magna Carta: 1. Exchequer legal system : Exchequer brought by
William 1(first Norman Kind of England)-ppl who
 Rights of free men:
manage administration of these financial assets.
 Property rights: 2. Household legal system : Legal system managed by
 Taxes
the household members that as brought by William 1
along with his army to England.
 The law - Court of Common Pleas, Exchequer system and
 Principles of liberty King’s Bench-end of the 13th century to resolve
conflicts.; but these three were merged into a
single system to avoid the conflicting decisions
that was taken up by these courts.
- King’s Bench- just namesake: King or Queen
does not take decision.

Nanavati case
Vagamound Case-test for cibility.
Nathuram Godse case

 Difference between Judges and jury.

  Jury system very
predominant in the common JUDGE JURY
law system-but judge has
limited power in jury system.
16.01.2025
 Trial proceeding
 State/ Prosecution brings the case
 Evidence and witness has to be submitted by the prosecutor/petitioner’s side
 Levelling of charges-Till 1967 jury was allowed in the court-1973 reforms of criminal
procedure code.
 Last jury trial in India-KM Nanavati case
 Circuit courts-set up by British to speed up trial-a model taken by fasttrack court functioning
in India at present.
Civil procedure – argument for order; order should be then converted to decree which
becomes enforceable.
- Difference between order and decree.

 law is generally smthng that is generally thought to replace morality.

 Basic Requirements of Common Law
 Rule of law
- https://worldjusticeproject.org/rule-of-law-index/
- Antithesis of rule of law
 Principles of Stare Decisis-Adherence to previous decisions.
 Non-overlapping judicial decision making
 Defined system of Legal Actions against legal wrongs
 Certainty of Lex Loci.
- Lex Loci-Law of the place;he law of the country in which a transaction is
performed, a tort is committed, or
a property is situated.
- Lexi Loci of India is constitution.
- Britain does not believe in the  Certiorari one of the first writs
principle of Lex Loci. earliest writ because of rule of
law and also because of the
conflict between 3 institutions
of the English common law.
 Latecomer with regard to writs-
Habeus corpus
Grundnorm is a legal theory term that refers to the basic norm, rule, or order that forms the foundation of a
legal system. It is also known as the basic norm.
Explanation
 The term was coined by Hans Kelsen, a legal philosopher and jurist.
 Kelsen's theory of law is based on the idea that all law must have a point of origin, or grundnorm, to
be legitimate.
 The grundnorm is considered to be independent of any other norm and is the source of validity for the
legal system.
 The grundnorm is the apex of a pyramid of norms in legal science, with subordinate norms deriving
their power from the norm above them.
 The grundnorm is often described as hypothetical, and its creation cannot be scientifically
demonstrated.
Example
 In India, the Basic Structure of the Constitution is considered to be the grundnorm. The laws in the
Constitution derive their validity from the Basic Structure.

 Jurisdiction of church in England

 Christian courts in England- part of the European system subject to the papal
Curia -administer sophisticated and uniform law based on Roman law.
 Not confined to the modern English ecclesiastical law to question about
doctrine, clergy discipline, pulling down churches and rhe like.
 All lawful men were Christian and imp. Areas of their lives were subject to the
law of the church and to no other.
 Although jurisdictional conflicts-esp. in matters of inheritance, enforceable
debt against a dead person, breaking promise in ordinary courts
 Esp. the concept of Tithes, which was the decision of the church, but the
decisions over parsons was taken into jusrisdiction of ordinary courts, as it
involved questions relating to transfer of private ppty.
 Which is the part that advocates actively for the rule of law?

1. ARTICLE 14 IS THE STRONGEST ADVOCATE FOR RULE OF LAW

 GUARANTEES EQUALITY BEFORE LAW
 ENSURES EQUAL PROTECTION OF LAWS
 PROHIBITS ARBITRARY ACTIONS BY THE STATE
 DERIVED FROM BRITISH CONSTITUTIONAL THEORIST A.V. DICEY'S
CONCEPT OF RULE OF LAW
2. SUPPORTING CONSTITUTIONAL PROVISIONS:
 PREAMBLE: JUSTICE, LIBERTY, EQUALITY
 ARTICLE 13: LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS ARE
VOID
 ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY
 ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES
 ARTICLE 50: SEPARATION OF JUDICIARY FROM EXECUTIVE

A.C Dicey-rule of law

 The Process of Centralization

 By the end of 13th century-multiple systems of administration in England-held
both administrative and judicial powers.
 The countries were considered to be the fundamental arm of governance, with the
duty to produce what was, in effect a balance sheet of wrongs and goo, and they
would be penalized for failures.
 Practice of periodic audit by a commissioner sent out from the centre, the justice
in Eyre(A circuit court which transferred from county to county.)
 Practice reversed gradually, with more representations going the other way to the
King from the Counties, which were to form the House of Commons. This was
because litigants sought King’s justice wherever they sought.
 Therefore a need for establishment of a permanent Central Court arose, alog with
administrative centralization.
 No uniform system was established until the 19th century and the process of
change was constant as to the centralization of judicial and administrative powers.
 Beginning of 14th century-Eglish Legal system led by 3 central courts, court of
common please, Exchequers, and the king’s bench.
 Eyres would be occasionally be commissioned for a few decades longer, bu they
were no longer integralto either government or government.
  No jurisdictional balance btwn these institutions- the circuit courts were the
courtswhich heard many disputes unluding the Torts and Contracts.
 Development of common law
 Common law grew to maturity between the 13th and sixteenth century reolved
around the court of commons.
1. Writs and related sanction
2. Anticipant pattern of law
3. Counting or Barristorship-Expertise in certain areas such as contracts etc.
Barristor Advocate
1. In England and Wales, barristers:
 Are members of an Inn of
Court
 Traditionally wear wigs and
gowns in court
 Usually operate from
chambers with other
barristers
 Generally cannot form
partnerships

4. Pleading procedure
5. Law reporting-
6. The trial-
7. Jurisdictional conducts(Rise of certiorari)
Section 193 of BNS
 Writ system as a form of action
 The writs in its origin was simply an administrative process through which a subject
gained access to the royal courts and was necessary because these courts were first
exceptional jurisdiction
 The administration of justice being a primary concern of the local feuds courts
 The Curia Legis, within which the common law courts formed was concerned at first
only with the protection of royal and governmental interests, but gradually its
jurisdiction was extended as it proved more popular than local justice.
 Thus, the local courts found their jurisdiction being slowly removed in favour of the
common law courts.
 The writs were a series of formulae that reflected the interests of the king or, more
generally, the typical disputes of the time(the common pleas).
 Procedure for enactment not enacted through statutes.
 Limitation Act, 1963
 Writ was like a ticketing system-contributed to a decline of common law.
 The writ of trespass, for example, was originally fashioned to deal with dispossession
of land by force with arms.
 The writ of debt was the means by which an unpaid supplier of goods or a service
would obtain his money.
  Each writ, with its own formula, was based on a model factual situation and once
defined, became a sort of administrative and legal precedent.
 At the beginning of 13th century, these precedents were to be found in a large book
entitled the Register

Law of equity-a set of legal principles and remedies that

supplement common law. It's used to provide justice in cases
where common law is insufficient or unfair.

 Reforms to common law in 19th century

 There were certain questions which loomed large over the common law systema at
the cusp of the 19th century
-why 3 court with equilvalent jurisdiction abide to system of legal rules
-why no proper appeal system

 1830-Court of Exchequer Chamber was established to act as a court of error, that is to

say, as a kind of appeal Court; the new Court consisted of judges from the common
law courts other than the one from which the appeal came.
 In 1851, a Court of Appeal in Chancery was set up as a true appeal Court-that is to
say, to rehear a case-rather as a Court of Error.
 Parliament has set about reforming the law of procedure. The forms of action were
effectively abolished by the passing of the Common Law Procedure Act of 1852, and
some progress was made in fusing common law and equity with respect to remedies
and the ability of a single court to have recourse to both systems.
 In 1846, local county courts were established, which grew in popularity eventually
and had more extensive jurisdictions, which gave them major role in the English civil
law system.
DEFECTS OF THE COMMON LAW SYSTEM
 Could grant only monetary remedies-debt and damages
 The judges are too conservative and not able to adapt to new circumstances
 Rigidity in forms of action
 Defects in the procedure (Jacobs V. Seward(1875))
 Commercialisation of subject matter required expertise.
 M.C Mehta V. Kamalnath-public trust doctrine part of Companies act,2013
Concepts that influenced the development of common law
Personal actions that are provided in common law
 Personal actions- remedies that a person can claim when a legal injustice happens or
when a legal right is violated.
 Completely depended on the person.
 Initial times there was constant evolution of writs
 70-100 writs were there in the English common law
 But the application of these writs were complicated
 Development of laws that are concerning the law of torts or torts committed, the
various personal actions under contract are the brainchild of common law.
  Including the writ of trespass that was developed in the English Legal System made
into an offence of trespass and tort of trespass.
 Concept of remoteness of damage with regard to the concept of negligence-how a
plaintiff have rights over recovery of debts-examples of personal actions that were
developed through English Legal System later imbibed into Indian law system
 Common law has one non-statutory non-monetory remedy-concept of ejectment-
went on to become statutory,monetory remedy under Indian legal system
 Whenever we study personal actions we always tend to study these personal
concepts,i.e, concerning 3 major branches-
 Law of contracts relating to ppty
 Law of torts relating to ppty
 Law of lands
 Old personal action of ejectment has served as the remedy of possession of land by a
dispossessed occupier. The owner of the land is entitled to go to the court and obtain
an order that the owner do recover the land and issue a writ of possession
 When ownership and possession are disputed-under English law, ownership has
upperhand over possession.

JURISPRUDENCE
 it is the science of law.

ANALYTICAL SCHOOL OF JURISPRUDENCE

 Criticism of natural school and divine school of law
 Beginning of applying scientific temperament to law-making and the functioning of
legal institutions
 19th century-a strong counter movement against metaphysical,divine and natural law
tendencies of the preceding centuries set in. The loose but comprehensive term
positivism may describe this movement.
 Positivism-scientific attitude rejects

Canon Courts and Canon Law-

TOWARDS CODIFICATION OF LAW IN ENGLAND
 Legislations-part of making of common law- part of civil law
 Common law it is the precedent that influence the judges and their judgements
 Points to ponder
1. Which are the schools of jurisprudence which actively or passively contributed
to the codification of common law in England?
2. What will be the effect of codifying the law upon the legal development of a
codified state?
3. How did the movement of codification in England affect other legal systems in
the world?
Sir Henry Maine

CERTAIN OTHER COMMON LAW CONCEPTS

 With the disappearnece of actual actions in the 14th century- English common law
came to consist of a register of personal actions
 Personal actions+remedies developed by the Court of Chancery, remain the basis of
liability law in England and Wales
 19th Century-situation changed-abolition of the forms of action and growth of
university law schools-open door to continental influences with the result of personal
actions
 Influence of Roman law-profound in the areas of obligations and other specific legal
concepts.
LAW OF OBLIGATIONS
 Civilian law of obligations-2 fundamental form characteristics.
1. Rights in personam(Rights against specific persons and contract)
2. Right in rem(Rights against the whole world.)
 Roman law definition-obligation is a legal bond whereby we are bound by the need to
perform something according to the laws of our city.(juris vinculum)- Romans seemed
not very interested in this general theory-but distinction btwn obligation and various
types of obligation certainly existed in Roman law.

 Even bfr Roman law-law of obligations-started influencing contracts under common

law-Court of Chancery developed its remedy of specific performance.

 Common law itself did not, at a formal level, think in terms of a substantive law of
contract based on agreement

 The contract itself tends not to be seen as some kind of abstract single binding
obligation (vinculum juris)

Vinculum juris-"a bond of the law" or "legal tie". It

refers to a legal obligation that binds one person to
another.
CONTRACTS
Starting point of contract-Offer