Corso di inglese giuridico Università degli Studi di Bari ‘Aldo Moro’ Common Law Corso di inglese giuridico (M-Z) Università degli Studi di Bari ‘Aldo Moro’ Lezione n. 2

Common Law v. Civil Law Common law Civil law Emerged in England Emerged in continental Europe Was applied in english colonies Was applied in european colonies Is uncodified Is codified Scarse influence of Roman law Great influence of Roman law Judicial decisions are sources of law Judicial decisions are not sources of law

Common Law v. Equity Common law Equity The branch of English law elaborated since the Norman conquest in 1066 The branch of English law that developed since XV century Based on the system of writs Emerged in opposition to the system of writs Developed by the Courts of Westminster Developed by the Chancery Court Characterized by strong formalism Not based on strict formalities

Common Law v. Statute law Case law Judicial decisions Acts of Parliamens Legislation Unwritten law Written law Pronounced by judges when deciding cases Not formally enacted by the legislature Enacted by the legislator according to procedures recognised as valid for producing law

The origin of common law Norman conquest (1066): - The customs of the Saxons weren’t abolished immediately Many innovations were introduced CREATION OF A FEUDAL SYSTEM The land was allocated to feudal vassals of the king and was created a chain of feudal relationships

Feudal system King Tenants in chief (lords or members of aristocracy) Intermediate tenants Tenants in demesne (who actually occupied the property)

Administration of justice First itinerant justice the royal judges went out to provincial town and applied everywhere the common law of Westminster both in criminal and in civil cases From the XIII century creation of the Courts of Westminster to apply the common law

Courts of Westminster Exchequer King’s Bench Common pleas (for the administration of the royal treasury) King’s Bench (for criminal matters and for any case which concerned the monarchy) Common pleas (for matters of civil property and, in general, civil claims)

The system of the writs Writ = a written order in the king’s name, issued by the king’s writing office (chancery) at the istance of the complainant Ordering the defendant to appear in the royal courts to see justice done If a plaintiff wished to have justice he would need a writ to enable to do it

WRITS For every complaint a specific writ: The plaintiff had to ask for the right writ If the plaintiff asked for the wrong writ he wouldn’t have justice Ex: - writ of right: for a proprietary action - writ of convenant: for breach of contract GREAT FORMALISM

WRITS GREAT RELEVANCE: in common law there is a right where there is a writ to enforce it Remedies precede rights Creation of new writs creation of new rights Great developement of common law

CRISIS OF WRITS Problems: formalism: who chose the wrong writ lost the action Expensiveness: who hadn’t enough money couldn’t obtain justice The centralization of justice and the growing power of royal courts reduced the power of the Lords strong opposition

Magna Charta (1215) The first step of the opposition of the Lords A fundamental document in English history which is the starting point for the protection of freedoms in English structure Required the king: - renounce certain rights - respect some legal procedures - accept that his will would be bound by the law

Magna Charta Fundamental clauses: No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 60. Moreover, all these aforesaid customs and liberties, the observances of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed b all of our kingdom, as well clergy as laymen, as far as pertains to them towards their men.

Equity The first consequence of the crisis of the writs was the developement of Equity jurisdiction: The mechanical application of writs did often result in injustices; Many plaintiffs started recurring straightly to the king to obtain justice; For the growing number of the petitions, the king delegated the task of hearing petitions to the lord chancellor; The early chancellors were clergymen that operated as “keepers of king’s coscience”; So it was developed an autonomous body of rules, known as Equity

Equity = the complex of the rules, originally created to mitigate the strictness of common law, developed in the Court of Chancery It was characterized: By the informality of the procedure (the action started by an informal procedure that could be written or oral; then the chancellor called the respondent with a ‘writ of subpoena’ common for all the procedures); The trial was very fast and informal (the chancellor collected evidences; heard the parties and the witnesses and then took the decisions); The decisions were taken on the basis of rules initially inspired to moral and catholic principles, on aequitas; The chancellor gave orders in personam (to do or not to do something) to purify the respondent’s coscience

The contrast between Common law and Equity At the beginning = equity followed the law = the equity solutions were not in contrast with common law By the time begun a strong contrast between common law and equity = different solutions in the two fields of jurusdiction Who had lost in a common law procedure often advocated the equity courts that frequently reversed the decision It was inacceptable for the Westminster’s judges and a strong contrast started

The law reforms - The contrast between common law and equity - The industrial revolution Required reforms JUDICATURE ACTS (1873-1875): REORGANIZATION OF THE COURTS OF JUSTICE FUSION BETWEEN COMMON LAW AND EQUITY’S COURTS ABOLITION OF THE FORMS OF ACTION