Common law is developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statues or executive branch action. A “common law system” is a legal system that gives great precedented weight to common law1, on the principle that it is unfair to treat similar facts differently on different occasions2. The body of precedent is called “common law” and future decisions are bound by it. In future cases, when parties disagree on what the law is, an idealized common law court looks to past presidential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stara desics). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating precedent3. Thereafter, the new decision becomes precedent, and will bind future courts. However, the development of the common law doctrine in many cases is now of historical interest only. Although the basic principle is preserved, statutory changes have been made which modify the effects of many land mark cases.
The law of England and Wales has been shaped by a variety of influences, and of these, it can be argued that common law is one of the more significant sources as it can rightly be referred to as the system of law which is common to the whole country. .Common law can be described as the law of the land or the national laws which are common to the whole country and these have developed over time.
At the Anglo-Saxon period prior to 1066, William, the Conqueror invaded England. He found the country with no centralized legal system. The country was divided into various areas or kingdoms .Each kingdom had own body of law based on the local customs of the people who lived there with local courts and borough courts where applying the law as per the custom of the area. There was no uniform system of law because of the absence of any judicial machinery to require or to produce it. Instead, the laws of Saxon and Danish kings were imposed on local traditions. These laws were known as “dooms”. These laws were conservative and harsh in nature, reflecting a society in which violence, robbery and death dominated everyday life.
After the conquest of 1066 the social conditions did not change significantly because William I did not try to impose Norman law on local conditions or customs. The process of change was gradual but nevertheless dramatic because of the introduction of the feudal system. Under this system all land was owned by the king, so that the country became United Kingdom replacing the local kingdoms. William decided to centralize the law to establish a strong central government to control the land. To do this he arranged all the local custom based laws and used them as a basis for common laws. Then those laws were applied in ‘common’ by all the courts across the country; this is why it was referred to as common law. He introduced the Curia Regis, who enforced a system of rules which applied to the whole country and became known as the common law.
At first the council performed judicial function as well as legislative and administrative ones, but gradually the judicial functions were delegated to committees of the council which became the royal courts of justice. At that time the royal courts sat only at Westminster Hall but in order to maintain law and order throughout the kingdom, the practice arose of sending judges into the provinces on- assize or circuit. Central government appointed judges who travelled major towns to decide any important cases. They acted under the authority of various royal commissions granted to them by the Norman kings in order to try criminals.
Henry II, a lawyer by character, laid the foundations for a system of common law, through some reforms. These reforms helped to develop a national legal system based on common law, a law common to all persons and parts of England and Wales. At regular periods the travelling judges, who were known as justices in eyre, held a general eyre in each locality dealing with all the legal and fiscal matters of that area in one sitting. The general eyre gradually died out by the mid-fourteenth century but the regular circuit system survived into modern times. By 1250 a common law had fully developed with rules, which applied to the whole country .At first the common law system appeared to be fair but soon became rigid and fixed. That system was also extremely technical and if not followed precisely could lead to failure to obtain any remedy for the wrong suffered.
Deficiencies of Common Law
Although the development of the common law was seen as for the better, it came with some problems. The special deficiencies or imperfections of common law were as to the law itself. Following were the major deficiencies found in the common law:
(a) That the reasonable remedy was not available in all cases for many wrongs,
(b) That the relief granted by the common law court was not always adequate,
(c) That the procedure at the common law court was defective and unsatisfactory,
(d) That the rules were too strict and it did not cover the whole field of obligations,
(e) That the person who could not get relief in common law courts presented their petition to the King in Council and later to the Chancellor. The result was that the court of chancery never claimed to override the courts of common law. It pre-supposed the existence of common law courts and exercised power only to redress the wrongs that were left without remedy by the common law courts.
(f) That it had no effectual means of extracting the truth from the parties, as to its administration that its judgments were not capable of being adopted to meet special circumstances
So it is undoubtedly true to say that equity in England grew up because of the deficiencies of the common law and the inadequacy of the remedies.
The law of England and Wales has been shaped by a variety of influences, and of these, it can be argued that common law is one of the more significant sources as it can rightly be referred to as the system of law which is common to the whole country. .Common law can be described as the law of the land or the national laws which are common to the whole country and these have developed over time.
At the Anglo-Saxon period prior to 1066, William, the Conqueror invaded England. He found the country with no centralized legal system. The country was divided into various areas or kingdoms .Each kingdom had own body of law based on the local customs of the people who lived there with local courts and borough courts where applying the law as per the custom of the area. There was no uniform system of law because of the absence of any judicial machinery to require or to produce it. Instead, the laws of Saxon and Danish kings were imposed on local traditions. These laws were known as “dooms”. These laws were conservative and harsh in nature, reflecting a society in which violence, robbery and death dominated everyday life.
After the conquest of 1066 the social conditions did not change significantly because William I did not try to impose Norman law on local conditions or customs. The process of change was gradual but nevertheless dramatic because of the introduction of the feudal system. Under this system all land was owned by the king, so that the country became United Kingdom replacing the local kingdoms. William decided to centralize the law to establish a strong central government to control the land. To do this he arranged all the local custom based laws and used them as a basis for common laws. Then those laws were applied in ‘common’ by all the courts across the country; this is why it was referred to as common law. He introduced the Curia Regis, who enforced a system of rules which applied to the whole country and became known as the common law.
At first the council performed judicial function as well as legislative and administrative ones, but gradually the judicial functions were delegated to committees of the council which became the royal courts of justice. At that time the royal courts sat only at Westminster Hall but in order to maintain law and order throughout the kingdom, the practice arose of sending judges into the provinces on- assize or circuit. Central government appointed judges who travelled major towns to decide any important cases. They acted under the authority of various royal commissions granted to them by the Norman kings in order to try criminals.
Henry II, a lawyer by character, laid the foundations for a system of common law, through some reforms. These reforms helped to develop a national legal system based on common law, a law common to all persons and parts of England and Wales. At regular periods the travelling judges, who were known as justices in eyre, held a general eyre in each locality dealing with all the legal and fiscal matters of that area in one sitting. The general eyre gradually died out by the mid-fourteenth century but the regular circuit system survived into modern times. By 1250 a common law had fully developed with rules, which applied to the whole country .At first the common law system appeared to be fair but soon became rigid and fixed. That system was also extremely technical and if not followed precisely could lead to failure to obtain any remedy for the wrong suffered.
Deficiencies of Common Law
Although the development of the common law was seen as for the better, it came with some problems. The special deficiencies or imperfections of common law were as to the law itself. Following were the major deficiencies found in the common law:
(a) That the reasonable remedy was not available in all cases for many wrongs,
(b) That the relief granted by the common law court was not always adequate,
(c) That the procedure at the common law court was defective and unsatisfactory,
(d) That the rules were too strict and it did not cover the whole field of obligations,
(e) That the person who could not get relief in common law courts presented their petition to the King in Council and later to the Chancellor. The result was that the court of chancery never claimed to override the courts of common law. It pre-supposed the existence of common law courts and exercised power only to redress the wrongs that were left without remedy by the common law courts.
(f) That it had no effectual means of extracting the truth from the parties, as to its administration that its judgments were not capable of being adopted to meet special circumstances
So it is undoubtedly true to say that equity in England grew up because of the deficiencies of the common law and the inadequacy of the remedies.