What is Common Law?

1. What is Common Law?

2. Blackstone ‘The Common Law’ "... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law." Sir William Blackstone 1723-1780 Commentaries on the Laws of England Four Volumes published between 1765-1769

3. "It is better that ten guilty persons escape than one innocent suffer.“ Sir William Blackstone CC-BY kangotraveler http://www.flickr.com/photos/14279744@N03/2226542443/

4. The development of Common Law

5. William the Conqueror 1066-1087

7. Trial by ordeal • Until banned in C13th trial could be by ordeal • Male serfs underwent trial by water • Freemen and all women, trial by hot iron. • If a person was innocent God would perform a miracle • There was also trial by combat - "wager of battle.“ Early illustration of trial by combat

8. The Curia Regis “King’s Court” • Used by William I to govern the country and as court for deciding disputes

9. Juries and the shires

11. Henry II 1154-1189 Takes throne after generation of civil war Keen to regain control Institutionalised common law Court system ‘common’ to the country King’s Bench in Westminster Judges go ‘on circuit’ Eliminated arbitrary remedies Jury system of citizens sworn on oath to investigate criminal and civil matters

12. Spread of Common Law King’s courts 12thCentury England & Wales

13. Earliest Law Reports Date from C13th The Year Books The oldest available law reports cover the period c.1272 (the early years of Edward I's reign) to 1535. They are written in legal French or Latin and were produced anonymously CC-BY Yale Law Library http://www.flickr.com/photos/yalelawlibrary/8388295500/in/set-72157632540779086 Case report from reign of Edward III

14. Feudal times

15. The Assize system lasted until 1971 • Current Circuit system - High Court judges sit in London and travel around the country The Court of King's Bench at work. C15th illuminated manuscript

16. Henry II and the jury • 1166 Royal Edict • Grand Jury – jury of presentment • Followed by ordeal • Petty jury - Trial jury used to decide guilt after abolition of trial by ordeal in 1215

17. Reflections CC-BY dSeneste.dk http://www.flickr.com/photos/dseneste/5912382808/

18. Peaceful Resolution of Disputes The ending of blood feuds in England coincided with the establishment of the King’s Courts in the 12th Century “The justification of a legal system and procedures must be one of lesser evils - that legal resolution of disputes is preferable to blood feuds, rampant crime and violence.” [Bayles 1986] Romeo and Juliet

19. The courts are public sites for justice “The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities.” Eduardo Couture (1950)

20. Countries marked in red at those with a Common Law legal system

21. Features of Common Law SystemsOrigins in English Common Law • Not always a written constitution or codified laws • Judicial decisions binding – decisions of highest court only overturned by same court or through legislation • Everything permitted that not expressly prohibited by law