2. Common Law in the Early Modern period Flashcards
(9 cards)
How and why was law professionalized in the 15th century?
As a result of War of Roses (1455-1485) nobles lose power and need to rely on others to make decisions. Results in development of apprenticeship system with Barristers at the Inns of Court.
Also results in increased specialisation between types of legal work.
How was papal authority eliminated from England?
As a result of Henry VIII’s dispute with the Pope about his divorce. He established himself ruler of state and church.
What was the key concern of law reform in late 16th- early 17th centuries?
How much the King could be subjected to the law. Whether he could make decisions outside common law (eg. Star chamber in which he tried people in absence and Court of High Commission where he could try priests).
What were the two streams of law in the 17th century and how did they emerge?
- Common law
- Equity- developed from Chancery court where appeals to Lord Chancellor could be heard and decisions overturned on the basis of Christian fairness.
What was Edward Coke’s reason for overturning the King’s decision in the 1607 Case of Prohibitions? Why is it significant?
He overturned it on the basis of the King’s lack of knowledge of the artificial reason of common law. This established legal training as a prerequisite to practice and speak on law.
What was significant about Dr Bonham’s case of 1610?
Established the principal that common law can overturn a Parliamentary Act?
What bills in the late 17th and early 18th centuries affected the British monarch’s power? Why were they enacted?
1689- Bill of Rights- limited the monarch’s power
1701- Act of Settlement- monarch must be an Anglican
Because of the removal of the Catholic King James in the ‘Glorious Revolution’ in 1688 and his replacement with his daughter Mary and her husband William of Orange.
What are the features of the 18th Constitutional Settlement
Three sources of law: legislation (parliament); common law (courts); equity (chancellor)
King makes laws through parliament
Parliamentary sovereignty- parliament can make any law
Rule of law
What is the rule of law?
- Certainty- laws are clear and proscriptive
- Generality- law is equally applicable to everyone
- Equality- laws are fair and allow for differential treatment of different people
