COMMON LAW

COMMON LAW

BACKGROUND

The Common law of England has come out of hundred years of development beginning with Anglo-Saxon custom (in the period up to 1066) and the impact of the Norman rationalisation and centralisation of authority. Prior to the Normal conquest of England, there was no unitary and national law system. T3he birth of the common law represented the assertion and affirmation of central sovereign power. Over the subsequent centuries it grew through complex process of recognising and rationalising the multitude of judicial decisions that judges of the central court created.

HISTORICAL PERSPECTIVE

Law was local custom, largely unwritten and understood as a set or orally transmitted rules. As a body of rules, their contents seem to be directed as preventing bloodshed by recognising elementary rights to property and personal freedom and substituting compensation for the rigours of blood feuds as revenge for injury. In 1066 the Norman French Baron William defeated Saxon King Harold at the battle of Hastings and conquered England thus becoming King William I.

Rights to properties include freehold i.e. a title to land, which means that the owner holds the land free from encumbrances. However, theoretically the Crown still has certain rights such as its right to purchase the land under compulsory order. William developed central administration law.

DEVELOPMENT OF THE COMMON LAW

Gradually the common law courts began to take on a distinct institutional existence in the form of the Courts of Exchequer, Common Pleas and King’s Bench. With institutional autonomy developed institutional sclerosis typified by reluctance to deal with matters that could not or were not processed in the proper form of action hence the maxim ‘Ubi rimedium ubu jus’ – no right could be recognised in the common law unless a writ existed that provide remedy for this breach). Such refusal caused substantive injustices. Plaintiffs unable to gain access to the three common law courts directly appealed to the sovereign with such pleas being passed to the Lord Chancellor, who acted as King’s conscience. This culminated in the creation of Court of Chancery presided over by the Lord Chancellor applying a system of rules known as equity rather than the common law of ordinary courts. The Court of Chancery was often called Court of Conscience (a man must come to equity with clean hands). Equity law developed to soften the formal rigour of the common law. In case of conflict between equity and common law, the rules of equity prevail. Parliament created Judicature Act 1873-1874 which established a unified system of courts that were charge with applying both the common and equity laws to put a stop to put an end to the division.

While common remedies are available to plaintiffs as a right, equitable remedies are discretionary in the sense that they are subject to availability. Common law thus refers to the substantive law that have been created by the judiciary through the decisions in the cases they have heard without reference to the laws passed by parliament. Statues become the most prolific source of law in England and Wales in the late nineteen century. Ronald Dwokin (Law Empires 1986). Common law is flexible hence its adaptability. The legal system of continental European countries exported around the world which gave rise to civil law systems. Napoleon created Code Civil which was copied round the world.

DISTINCTION BETWEEN COMMON AND CIVIL LAW

Some of the other major distinctions in law are the criminal law, civil law, public law, private law, etc. Criminal law is an embodiment of power of state to punish people for actions, or failures to act, which are deemed contrary to the interest of the society as a whole or the power interest group that have assumed the legislative process; failure criminal behaviours. There close connection between Civil wrong - torts and crime. Civil law is continental European family of legal systems – civil law is all laws other than criminal law (English private law). Public law is loosely referred to as constitutional and administrative law. The distinction between substantive law and procedures is, in simple term, the distinction the rules applicable to the merit of a dispute (substantive law) and the rules governing the manner of resolution of a dispute (procedure). It might also be said that procedure came before substantive rights. The characters of common law of thought – the idea of common law as a general principle of law seems more appropriate as it captures this shifting, dynamic character. Common laws reside in judicial decisions rather than rule i.e. mode of treating legal problems rather than rule (supremacy of law, case law and hearing cause as a whole in open court), institution of trial by jury judicial empiricism; pragmatic case-by-case decision making guided by past precedents; common law unity has been attributed to its being grounded in, and logically derived from, a handful of general principles.

MAXIMS IN COMMON LAW

Maxims in law are somewhat like axioms in geometry. They are principles and authorities that become part of the general custom of common law of the land and bind judges when it is argued they applied to a case. In the past, maxims were far more important than precedents, but as legal procedures become more detailed and complex, maxim lost their force and ceased to be of much practical significance e.g. Actore non probante reus absolvitur (when plaintiff does not prove his case the defendant is absolved);argumentum ab impossibili plurmun varlet in lege (An argument deduced in law is strongest in law); bona fides non patitur, ut bis idem exigatur (natural equity or good faith does not permit us to demand twice payment for the same thing): caveat emptor (buyers beware); cogitationis poenam nemo patitur (no one is punished for merely thinking of a crime); commondum ex injuri sun non habare debet (No man ought to derive benefit from his own wrongdoing).

COMMON LAW APPROACH

The Common law traditions entails a particular approach to the discovery, interpretation (where necessary) the making of law as practised on contra-distinction to the jurisprudence of countries influenced by the Roman and later European codes (such as Napoleon codes). According to the declaratory doctrine of common law, Judges do no make laws, but they are ‘the depositories of the laws, the living oracles who must decides all cases of doubt’ (…) Cotterrell 1989 P. 25 Judicial decisions according to Matthew Hale writing in the seventeen century, do not make law ‘for that only the king and the parliament can do’, but are evidence of law, and though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such whosoever (…)’ opinion. The judge is the spokesman for the community about its laws, but a particularly authoritative spokesman. The Common law is inductive and empirical in nature – proceeding in incremental way laying its rules on a case by case basis, inferring a general principle after precedents justify that interference. The rule of equity has not sought to replace in modern time the doctrine of precedent and the rules of recorded discretion with unpredictable ad-hoc decision making.

Civil law is said to be deductive in nature because it proceed from an exhaustive codes of propositions in accordance with which all subsequent experienced must be judged.

English legal system is adversarial (accusational) and civil law system is inquisitorial. In the adversarial system the parties dictate, within the constraints of traditional form and packages – such a writs, forms of action and pleadings. The success of a case therefore often rests on the ability of an advocate to manipulate proceeding and not just on the weight of evidence. The system rests on these assumptions – both parties are represented, the lawyers representing each party are efficient and equally matched; the lawyers will promote their clients’ interests. English lawyers do not owe a general duty to ensure justice is done or to enable the court find the truth. Their only obligation is not to mislead the court on question of law or fact. With the exception of coroners court, the proceedings in English court does not take the form of investigation into the matter before them.

Inquisitional system basically entails an examining judge conducting his or her own investigation in conjunction with the police before any trial takes place. The legal ‘families’ refer to the coherent similarities that group together the various legal systems in the world into distinguishable ‘traditions’ or ‘families’. Some of these derive from religion (Sharia and Thalmudic legal systems); others are associated with particular political and social ideology (common laws, civil law and roman law and the now declining socialist law).

OBJECTIVE AND CHARACTERISTICS OF THE VARIOUS SYSTEMS

Overall objective of common and civil law is to establishment of a system for the just resolution of dispute and the maintenance of social order.

The major concern of the common law is the determination of legal dispute according to their individual characteristics rather than applying general statement of legal principles. The source of law is to be found in the text of the judgement (unwritten yet written, pass down from generation to generation and its compilation began in the nineteen century). It applies to all person including the state; adoption of an inductive legal reason whereby legal principles are derived from the texts of many single judgements. A major part of its characteristics is the litigation system in which trial is distinct and the climax of litigation process; courtroom practice where many are subject to rigid and technical rule. The system is more participatory and parties control proceeding and the role of the judiciary was more restrictive than proactive the judicial process has an inherent power to adjudicate separately from the political or executive process. The efforts and expenses of determining litigations falls largely on the parties. The impact of European Union Law and International Law which are amalgams of principle, substance and practice of both civil and common law systems. The distinction between common and civil law seem to be weakening.

Legal principles are now applied to the circumstance of individual case in a fashion. Such principles include (neighbourhood principle in tort law, natural justice in administrative law, implied terms in contract law, constructive trusts in property law). Common law judges have limited powers over direction or substance of cases, whereas a judge in a conventions civil law inquisitional case is expected to explore actively whatever will result in the resolution of the disputes in a continuous process of pre-trial, inquiry stages. Assisted and alternative dispute resolution processes are beginning to form major part of the legal process, most especially for commercial matters.

Some of advantages of the adversarial system of litigation is that it reduces the element of bias in the decision maker, leads to the lawyer for the person with a fuller case to put forward fuller version of the fact than he would in inquisitorial context; more acceptable to both parties etc. Some of its drawbacks include its heavy reliance on inning and losing, the lawyer role is simply partisan, the evidence presented by experts may be fashion to suit certain line of argument, the judge is responsible for ensuring that proceedings are conducted fairly (sensitivity about limiting issues raises by parties, the judge is not responsible for how much evidence or arguments are put forward, the judge adjudicate question of law submitted to the court but not responsible for discovering the truth or settling disputes, its too slow; too expensive; its too unequal, its too uncertain and incomprehensible to many litigants.

Courts are formal structures for decision-making. A narrowing of issues occurs where the court will only engage in relevant issues. A great deal of human element may not be addressable in that forum.

THE ROLE OF COURTS AND OTHER DECISION MAKING BODIES

The words of the law reports and not themselves common laws but the decision of the courts as reflected in the law reports provide authority for what the common law can be argues to be.

The doctrine of stare decisis’. Common law arose with the idea of Judges of English royal courts deciding cases (or in the older terminology adjudicating upon causes) and the subsequent recordings of those decisions. Oliver Wendell Holmes (former Dean of Faculty of Law, Harvard University, Legal realist) “Law is what the courts do in fact”

The essential difference lies in the role of authorised third party who give judgement i.e. the presence of some overriding authority structure with ability to enforce judgement. In small scale social grouping judgement of one peer may be crucial and important in enforcing customary norms, public criticism, withholding of recognition, ostracism and ultimately expulsion or exiling

In the early days of human civilisation, disputes between members of different keen or network may result into wars, blood feud, etc. In small scale social grouping judgement of one peer may be crucial and important in enforcing customary norms, public criticism, withholding of recognition, ostracism and ultimately expulsion or exiling. As law The King’s Court (Curia Regis) was legitimated in two ways: the King could hold court as feudal lord for his tenants as the ultimate landholder; the king could exercise residuary justice inherited from the general principle of kingship which had existed in rather week form during the Anglo-Saxon period The king introduced certain from of machinery for deciding legal questions and developed centralised writ system and ensuing form of action. A writ was a command from the king, which would be enforced against the offender by punishment or imprisonment.