The common law
15/09/2011 Deja un comentario
A listening exercise that should take less than 10 minutes.
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1. Common law is judge-made law.
2. Equity is a system based on conscience and fair dealing.
4. Statute law – law created by Parliament.
After 1066 and the Norman conquest, the new rulers didn’t try to impose their legal system on Anglo-Saxon England. William I issued charters confirming that the old laws remained in effect. Those laws, based on custom, varied from place to place. There was no unitary body of law that applied across England.
In the 12th century, the king’s judges were sent to the shires to oversee the administration of law. The royal judges travelled to various parts of England where they resolved local disputes before returning to London.
Once in the capital, the judges discussed the cases they had resolved. Their decisions were written down, allowing them to be read by other judges. Over time, a rule of precedent was established whereby a judge had to follow the decision of an earlier judge if the facts of both cases were the same or very similar. Thus, a body of law was developed in the capital, which was applied throughout England. It was common to all parts of England, hence the name ‘common law‘. Judge-made common law operated as the primary source of law before Parliament acquired powers to create statute law.
However, although judges administered the king’s justice, the king remained the ultimate source of law to which appeals could be made. Parties frustrated by the judges’ decisions appealed to the king. He delegated the hearing of those appeals to his Chancellor, an important member of the royal council.
Successive Chancellors developed their own court –the Court of Chancery– along with its own legal system known as equity, a system based on conscience and fair dealing. Equity emerged as an alternative system to common law which had become inflexible. For example, the common law could only award damages, but the Court of Chancery could issue an injunction.
The two court systems –common law and equity- began to clash. In 1615, the king ruled that where common law and equity were in conflict, equity should prevail. The principle still applies today.
In the 19th century, it was decided to fuse the two court systems so that common law remedies and equitable remedies became available to the same party in the same court. The most common example of an equitable remedy is an injunction, a court order that a party must or must not do something.
However, it should be noted that equity never says that the common law is wrong, it merely provides alternative solutions to legal problems. Equity complements the common law but does not replace it. In the 16th century, a third kind of law emerged, statute law, that is, the laws or Acts passed by Parliament. Statute is the ultimate domestic source of law. No court can question the validity of an Act of Parliament. However, the common law remains the basis of the English legal system. It gives sense to Parliament’s laws. For example, the right of an employee not to be unfairly dismissed, that is, not to have his contract of employment terminated in certain circumstances, is a right granted by an Act of Parliament, but it is the common law that tells us what a contract is, how and when it is formed and how and when it is terminated.
Finally, a further and recent source of English law is European law
In conclusion, English lawyers regularly speak of four types or sources of law: common law, equity, statute law and European law