3.2 Common law

Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo-Saxon times there were local courts which decided disputes, but it was not until after the Norman conquest in 1066 that a more organized system of courts emerged. This was because the Norman kings realized that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king, William the Conqueror, set up the Curia Regis (the King’s Court) and appointed his own judges. The nobles who had a dispute were encouraged to apply to have the King (or his judges) decide the matter.

As well as this central court, the judges were sent to major towns to decide any important cases. This meant that judges travelled from London all round the country that was under the control of the King. In the time of Henry II (1154-89) these tours became more regular and Henry divided up the country into ‘circuits’ or areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is believed that the judges on the return to Westminster in London would discuss the laws or customs they had used, and the decisions they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or ‘common’ through the country, and it is from here that the phrase ‘common law; seems to have developed.

Common law is the basis of English law today: it is unwritten law that developed from customs and judicial decisions. The phrase ‘common law’ is still used to distinguish laws that have been developed by judicial decision, from laws that have been created by statute or other legislation. For example, murder is a common law crime while theft is a statutory crime. This means that murder has never been defined in any Act of Parliament, but theft is now defined by the Theft Act 1968.

Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the King’s courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery courts.

Words and phrases you need to know

1. custom n (a practice that by its common adoption and long, unvarying habit has come to have the force of law)

local custom (a custom that prevails in some defined locality only, such as a city or county, and constitutes a source of law for that place only)

general custom (a custom that prevails throughout a country and constitutes one of the sources of the law of the land)

valid custom (legally sufficient custom)

customary adj (usual) customary duty

2. judicial decision (court decision)

3. common law ( the body of law derived from judicial decisions, rather than from statues of constitutions)

4. centralize v. (to bring under central control) centralized government

5. appoint v (choose for a position)

6. be entitled to (to be granted a legal right to or quality for)

7. enforceable at law

8. theft n (any act of stealing) Theft Act 1968

9. statutory crime (a crime punishable by statute. cf. common-law crime)

10.equity n (fairness; the system of law or body of principles originating in the English Court of Chancery )

11. chancery court ( a court of equity)

Reading notes:

Act of Parliament (a law that has been officially accepted by a parliament, especially the British Parliament. Before a law becomes an ‘Act”, when it is still being discussed, it is called a ‘bill’.)

Anglo-Saxon adj (connected with the Anglo-Saxon people who lived in England from about 600 AD)

Harold II , King (? 1022-66) the last Anglo-Saxon king of England, who became king at the beginning of 1066 but later that year died in battle against William the Conqueror at Hastings. He is supposed to have been killed by an arrow that hit him in the eye.

William the Conqueror (1027-1087 the king of England from 1066 until his death, also William I. William was the Duke of Normandy (in northern France), and became king of England by defeating King Harold at the Battle Hastings in 1066. His arrival brought great changes in English society, and is seen as the end of the Anglo-Saxon period and the beginning of the Middle Ages. He gave a lot of land and power to other Normans, so that French became the language of the ruling class, and he built many castles to control the English).

the Normans ( people from Normandy, in N France, who originally came from Norway. Led by William the Conqueror, they took control of England in the 11^th century, and had a very important influence on the law, language, and culture of England)

Norman Conquest (the period when the Normans led by William the Conqueror, took control of England after defeating the previous English King Harold II, at the Battle of Hastings in 1066. Those events had a very great influence on England’s history, culture, and language, and French became the main language of the ruling class)

Westminster ( a part of a city which is responsible for managing its own schools, roads and etc) which contains a large part of west central London, including Westminster Abby, the House of Parliament, and Buckingham Palace)

Exercise 1. Read the following sentences, notice carefully the active words in bold, and translate the sentences into Russian.

Custom

1. The guide offers information on local customs.

2. The main stream of English law began with the unification of local customs to form the common law and has been developed down to the present day by the judges as precedent has been built upon precedent.

3. These methods of developing law are usually referred to as sources of law. Historically, the most important ways were custom and decisions of judges.

Customary

1. In some countries it is customary for the bride to wear white.

2. Barbara answered with her customary enthusiasm.

3. For example in Egerton v Harding (1974) the court decided that there was a customary duty to fence land against cattle straying from the common. Another case was New Windsor Corporation v Mellor (1974) where a local authority was prevented from building on land because the local people proved there was a custom that they had the right to use the land for lawful sports.

Common law

1. The different local customs were therefore replaced gradually by a body of rules applying throughout, or common to, the whole country and known eventually as the common law.

2. The formulation of the common law took place when there were few statutes or other forms of written law.

3. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or ‘common’ through the country, and it is from here that the phrase ‘common law; seems to have developed.

Appoint/appointment

1. He’s been appointed to the State Supreme Court.

2. Today in the US the governor may still make temporary appointments to fill vacancies that occur in the Senate from his state, with the state legislature’s permission.

3. It is thought that following the Norman conquest ( as the country was gradually brought under centralized government) the judges appointed by the kings to travel around the land making decisions in the King’s name based at least some of their decisions on the common custom

Be entitled to

1. Full-time employees are entitled to receive health insurance.

2. I’m entitled to know why I wasn’t given a job.

3. ‘Local customs’ is the term used where a person claims that he is entitled to some local rights, such as a right of way or a right to use land in a particular way, because this is what has always happened locally.

Equity

1. Equity was never a comprehensive system of law as was common law, but was for the most part a collection of individual rules or principles.

2. If common law was the book, equity was a page of errata.

3. Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the King’s courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery courts.

Exercise 2. Fill the spaces in the following sentences with a suitable expression from Exercise 1

1. In the English-speaking countries … is the principle of justice which may be used to correct a law when that law would cause hardship in special cases.

2. Only members of the company … … … use the facilities.

3. Historically, the most important ways were … and decisions of judges.

4. A committee was … to consider the plans.

e. Although customs may develop, they are not part of the law until recognized by the courts; it is the judges who decide which customs will be recognized as…

f. You may … … … compensation or loss of earnings.

g. … is law made by a body other than Parliament, but with Parliament’s authority.

h. They have to … … the river for their water.

Exercise 3. Find in the text English equivalents for the following Russian words and expressions.

общее право, справедливость, право справедливости ( правосудие на основе права справедливости), имеющий исковую силу( могущий быть принудительно осуществлённым в судебном порядке), судебное решение, право, выраженное в законах ( статутное право), преступление по статутному праву

Exercise 4. Translate the following sentences into English

a. В период до норманнского завоевания Англии в стране отсутствовала централизованная правовая система.

b. Право этого периода представляло собой лишь местные обычаи патриархальных англосаксонских племен и сообществ.

c. Правовые обычаи англосаксов устарели еще во время правления Вильгельма Завоевателя. Поэтому исторически очень скоро укрепляется новая система права, которая была введена норманнами в противовес местным правовым обычаям англосаксов.

d. Норманны весьма гордились тем, что им удалось ввести общее для всей территории завоеванной страны право. Отсюда и пошло название английской системы права – “ общее право “.

e. Завоеватели стремились установить такую систему, которая охватывала бы всю страну. Необходимость централизации власти и централизованных органов управления определялась политическими и финансовыми причинами.

f. Все претензии, которые предъявлялись старому общему праву, обусловили появление в Англии нового права – права справедливости.