Lecture 6. Legal system of england
Formation of English Common Law
Law of Precedent of England
Structure, Sources, and Principal Groups of English Common
Law
Characteristic Features of the Legal Family of the Common
Law
Legal System of Scotland
Formation of English Common Law
The Common law is a system bearing the profound imprint of its history, and that history up to the eighteenth century was exclusively the history of English law. It proceeded along three paths: the forming of the Common law, the addition thereto of the law of equity, and the interpretation of statute law.
The roots of English law reach far back into the past. After the Norman Conquest (1066) of England, the principal role in the effectuation of justice was placed on the royal courts situated in London. Private persons, as a rule, could not apply directly to a royal court. They should first ask the king, and in practice the chancellor, for the issuance of a writ enabling the consideration of a case to be brought to a royal court. Initially such writs were issued in exceptional instances. Gradually the list of cases for which they were issued began to expand. In the course of activity of the royal courts gradually the amount of decisions by which those courts were guided subsequently began to increase. The rule of precedent was formed: a formulated judicial decision subsequently became binding upon all other judges. The English Common law forms the classic system of precedential law, or a law created by judges.
Insofar as the principal difficulty was to obtain the possibility to apply to a royal court, a formula emerged, "judicial defence precedes law", which to this day determines the characteristic features of the English understanding of law.
At the end of the thirteenth century the role of statutory law began to grow. In this connection the law-creative role of judges was to a certain extent restrained by the principle according to which changes in law should not occur without the consent of the king and parliament. Simultaneously, the right of judges to interpret statutes was established.
During the fourteenth and fifteenth centuries in connection with great social changes in English mediaeval society (development of goods-monetary relations, growth of cities, decline of the economy in kind), the need arose to go beyond the harsh framework of a closed system of precedents already in existence. The royal Chancellor assumed this role, settling disputes by way of a determined procedure under which the participants thereof appealed to the king. Thus, together with the Common law, a "law of equity" was formed. It, just as the Common law, is a precedential law, but precedents here are created by other means and encompass other relations than does the Common law.
Until 1873 a dualism of court proceedings existed in England on this basis: besides the courts applying the norms of the Common law the court of the Lord Chancellor existed. Then these systems merged.
While the jurists of continental Europe considered law as the aggregate of established rules, for the Englishman law basically comes down to judicial consideration. On the continent the jurists are interested above all in how a particular situation is regulated, whereas in England attention is concentrated on the procedure by which it should be considered so as to arrive at the correct judicial decision.
In France, Germany, Italy, and other countries of the Romano- Germanic legal family justice always was effectuated by judges having the university diploma of jurist. In England even judges in the highest courts up to the nineteenth century did not necessarily have a university legal education: they had mastered a profession, working for a long time as barristers.
Only in modern times did the acquisition of a university diploma became a vital prerequisite in order to become a barrister, solicitor, or judge. Professional examinations enabling one to engage in the legal profession might be regarded as the equivalent of a diploma in law. However, even now most important in the eyes of Englishmen the analysis of a case in court by people of good faith and compliance with the basic principles of a court proceeding comprising part of a common ethic, in their view, is sufficient to be "well-judged".