common law development Flashcards
Roman law
Much of the world is based on Roman Law system = Civil law system
Influenced civil law systems. The historical importance of Roman Law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law. Roman law provided the basis for all legal systems around the world today. The Twelve Tables and Corpus Juris Civilis are the foundational codes of the Roman legal system of civil law, focused entirely on legislation.
Why did England develop common law system and not civil law?
1. Geography
the English Channel separates England from the European continent. This was a significant barrier, which made England more isolated as ideas would reach it slower due to its separation from the continent.
Relative limited exposure
England was part of the Roman Empire for only 400 years (43 - 426ad)
Other parts of Europe were ruled by Romans for more than 1300 years
William the Conqueror’s decision
King William I (who was from France) gained legitimacy in England by choosing to uphold the laws of previous Kings of England (rather than importing his own laws from the European continent, which were based on Roman law)
Future monarchs of England gained legitimacy by upholding William’s legacy
what did Henry II do (writ)?
following NC Henry II introduced the writ. a written document summoning one to court. The advantages of the writ were compulsion and precedent, as prior to this it was the role of the plaintiff to summon the accused to court which proved difficult. Further, the establishment of the writ created a precedent as writs were recorded
what did Henry II do (jury)?
popularisation of trial by jury, which still remains today as the only method of criminal dispute resolution from this time. Trial by jury became favoured over trial by battle, compurgation, and ordeal, as it was seen as the most legitimate form of deciding the law.
who were the ‘law finders’?
the King, who wrote books of ‘dooms’ stating what the law was, the Witenagemot who advised the King, and the doomsmen who controlled the Hundred and Shire Moots. These different individuals and groups ‘found’ the law and decided how it was applied. After the Norman Conquest the Witan’s became the Curia Regis and are the earliest known form of Parliament
what is equity
a branch of the law to be used when existing common law would be unfair or inappropriate. took precedence over the common law
who presided over the courts of equity?
The Chancellor ruled the Courts of Chancery which dealt with cases concerning equity. The Court of Chancery could issue writs and even took precedence over the common law at a point in time. Although New Zealand never had separate courts of equity and common law, it is still an important development to the common law which is recognised today.
how was this applied in NZ?
through the adoption of the Westminster system into New Zealand with the Statute of Westminster Act 1931 saw New Zealand adopt a bicameral general assembly composed of a House of Representatives and Legislative Council. Analogous to that of England’s Westminster system, this system was held until the House of Representatives decided the Legislative Council should be abolished
