1. 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

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

3. 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

4. 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

5. 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

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

7. 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

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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.

15. 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

16. 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

17. 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

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