Introduction
For many centuries, the common law, which is saturated with British traditions and knowledge has been still standing its dominance and quality for which not only countries those of used it, but also rest of the world which has not implemented it. Here what is going to be explained is the aspects of law in Britain and practice of common law due to its frameworks. In this piece of work, the essential lawmaker courts in the United Kingdom will be evaluated due to the nature and precedent of law.
In order to elucidate this subject, there are some other references that should be taken into account apart from the common law such as EU Law, the European Convention on Human Rights and some other legislation. For instance, speaking of those legislations, there are two types of legislations which are divided as primary and secondary ones, can be said respectively statutes and delegated acts. These legislations have the characteristics of prevailing both common law and equity law undoubtedly.[1]
From Past to Today
The substantiality of the common law is based upon its comprehensive non-statutory law, which has been formed with conglomeration of case awards with the lapse of time.
When it comes to the beginning, the Norman Invasion to England, which followed Roman Era and Viking Invasion, would be the first stage. Not only Normans brought new mentality of approach in the sense of community life to England, but also did they internalise their language and culture in Island. By the 11th Century, they had kept conducting their actions properly arranged in countries, those of which had had neither running local courts nor local laws. Feudal courts, local courts, ecclesiastical courts and court of the king were judicial organs of that period. Not long after, first signs of centralization along with procedural stability emerged in early 12th Century. By order of King Henry I, local disputes had been prevailed over by appointed his court judges.
Nevertheless many reigns before, Henry II decided upon the disputes that were brought and magistrate courts, which was corresponded with magistrate courts, which would have been corresponded with the courts at local degree. Yet the historians have acknowledged him as the founder of common law dynamics due to putting in place those breakthroughs. Henry II paved the way for optimal law framework by forming new model, which was based on evidentiary grounds, instead of primitive trial forms such as subjecting to torture and judicial duel that could be said dignified but still nonsense. The King legislated this form of law, soon after had been encountered severe consequences that caused by crusades and landlords.[2]
In respect to assizes, that procedure was seen in use by all regional courts with their all kinds of disputes that were brought to them. In order to advance in case, plaintiff had to obtain a precept from the king. On providing that precept, the progress was conducted by a royal judge. One might say that the method would be somewhat heavy footed; yet it would seem necessary in those days’ conditions if all things considered.
In the light of information above, there are three concrete steps that Henry II brought into action for English Law. The first of these is generating a perpetual court within the body of Westminster. Along the same line, he assigned to judges to be traveling who were supposed to preside local courts and award cases there with the rules of Westminster. Lastly, it can be considered that he integrated the whole of local courts in the meaning of judicial unity in the nation, by dealing writs and procedural norms.
Procedural models in feudal ages was generating with difficulty in sense of securing the justice, in parallel with thinking over permanent solutions, which refer to de lege feranda, was not taken into account, also any cases were binding as precedent in this chaotic environment. Instead of precedents, the king was only the one that it could be considered as a source in that period of time.
The king had held the reins of power via three features. Firstly, it could be seen that judicial, legislative and executive powers were in his and his council’s hand. Secondly, the parliament had been operating as his own council. Last but not the least, the king’s council had been applying not only the high court, but also the parliament. As one can see that the king has ultimate power over the whole legal infrastructure.
The courts were split into two main categories as of the royal courts along with local courts, which split into five sub-branches. Privy Council that consisting of the kings’ closest consultants, Court of Assizes that consisting of the king’s traveling judges, Court of Common pleas and judges in this court concerned themselves with private issues based on common law and its statutes. Eventually the King’s Bench, which was taken up with criminal occurrences concerning the King himself, was counted as the sub-branches of local courts.
When it comes to the role of judges in judiciary progress, they were not anticipating themselves as lawmakers at all. Besides, the common law was just a consultative progress that witnessed important discussions quite often. According to lawyers, the sources of common law had been presented themselves in local customs, act of parliament and judicial decisions.
In respect to opening a case in court, there was a stipulation to go forward. Pleading cases must have always begun with defendant party in court, which means the absence of defense had blocked the progress of trial by the beginning.[3] With the participation of defendant party, the case would have commenced by the attorney of plaintiff claiming the count orally, which went before the jury.
Evolving to Modern Common Law
As might be expected, the evolution of the common law had not occurred by itself. With each passing day in that period of time, the common law had been becoming to be unable to address the needs. A political system, the Feudalism had been going to dusty pages of history, after being taught how to use gunpowder effectively. Collapsing of feudalism caused manor courts to become inapplicable. Moreover, the invention of press was a significant breakthrough that also affected to judicial progress within the scope of distribution of printed texts together with copies. Furthermore, the law discipline had been improving itself as education quality, thus it had started to be seen formalised law training in schools. These evidences triggered to awareness for necessity of modern common law, so British did.
Expectedly, the changes came into existence in 18th Century by providing more comprehensive court records as well as some improvement on organization of court systems. In addition, 18th Century witnessed the acceptance of previous awards as one each element of grounds of the common law. One might say that the common law had waited to befit its dignity for a long time, for six centuries until modern age.
The common law had been transforming in a positive way, notwithstanding that it had come across several difficulties most of which caused by adaptation of equity into new amendments.[4] One might consider that the mentioned disaccord would not have constituted a severe problem, yet it did just by the reason the fact that the equity as the subsidiary of common law, which second-line supporter of it. [5]
The equity is a phenomenon that had never been considered as a conceptual field that possesses an autarchic structure within the scope of it. In other words, it could be said that equity was not a self-contained system ever. There are several elements that keep the equity stabilised if they could be managed wisely. It is foreseen that peeking over them might be helpful due to understanding what the equity is.
The equity looks on that, as done which ought to be done. The equity also looks at the indent, not at the form. Equity lastly looks on that as done, which ought to be done. It aids the vigilant, as well as it acts on the conscience. It will not suffer a wrong without a remedy. Equity always acts in person. He, who comes to equity, must come with clean hands. Also he, who seeks equity, must do equity.
By all means, the equity still keeps its importance as an umbrella for all kinds of rights. Its elements are still taken into account in courts when they are required to use with regards to the equilibrium. To give an example, some US codes are based on equitable remedies within this context.
Principles of the Common Law
As stated previously; European Union Law, the European Convention on Human Rights, equity and the common law are each parts of law of the England. From time immemorial, the common law has been an ongoing system as well as developing itself due to keep up with the times. As to basic principles of the common law, it is known as a special concept, which provides a right existed only it was feasible.[6] This feature makes itself practicable and unnecessary codifications that will never or rarely apply. Thus, the substantial law has become bound up with procedure. In other words, there is a tight junction between rights and procedures in that way. Roots of enforcement of rights and the subject of the disputed rights in common law are shaped in the common law in accordance with its nature.[7]
Basics of the Common Law
As to fundamentals of the common law, the pecking order system is applied to the whole concept. There is a ranking tradition amongst level of courts; in this way the higher courts are stronger in the way of binding by given decisions than lower ones. What is more, the existing awards also bind the lower courts during the course of trial. Nevertheless not being bound by the lower court’s decisions, higher courts may refer to their awards when needed. That is to say, what the higher court’s decided would be applied –unless that decision is not inconsistent and inadmissible.
Applying the Step Function to the Courts
Stair Decisis is the Latin name of the doctrine that refers to the uniformity of persuasive precedents as leading cases by the courts. The elements of the common law, precedents are of such persuasive that they are a more powerful meaning than being a pattern that is just concerned by the courts. Having said that, the civil law precedents seem different in this manner. It could be said that precedents affect potential cases in variable ways.
House of Lords
This body, which generally contains 5 judges, has been used for hearing the criminal and civil cases from Court of Appeal. The number of judges may vary in practice, by increasing up to 7 judges frequently, however the force of decision always is the same in any case, disregarding to number of judges.
Decisions are not only binding all the other courts, but also binding the House of Lords itself.[8] Correspondingly, the House of Lords betimes resorts to change its view in cases.[9] [10]
Court of Appeal
There are two incidents that ought to be explained in this section. Does the House of Lords bind the Court of Appeal by the decisions they made? Are the decisions that made by the Court of Appeal binding their own level?
Prior to seventies, the House of Lords had had the edge on the Court of Appeal in terms of decisions given. That was a common ground that supports to Lords being over the Court of Appeal. However, Court of Appeal awarded a case in an outbrave way and was convinced that the decision given by House of Lords irrelevant. This is an essential milestone that upset the balances between the courts in the UK.[11]
In the civil division, Court of Appeal is bound by its own decisions, which based on a general rule. No matter how many judges participate in summary judgment, the Court would be bound by the decisions given. Having said that, the criminal division of Court of Appeal is not that strict in terms of dependency as it can be seen in some cases, which involved decisions that regardless of previous decisions. Divisional courts and trial courts have less importance than Court of Appeal regarding to power on decisions, thus they would be bound by decisions given by Court of Appeal undoubtedly.
Customs in Implementation
As mentioned above, the very first rule is that refers to decisions given by higher courts would bind lower ones. What is more, the decision given by the House of Lords means the final point for that case. There would be any necessary observation for the sake of cases if the House of Lords presented a decision. The existence of various decisions on the same subject from various levels of courts, lawyers would order them and evaluate due to his intention.
Prior to last century, final judgments were used to occur with extemporal speeches. Since then, final decisions started to be given in the form of written speeches after ending of oral discussions. According to Dr. Munday, this changeover has provided simplicity in terms of circulation of judgments between judges. Now it can be said the written method provides more convenience as compared with the old oral method in the way of word processing.
One might become confused while esteeming whether the precedents are laws or evidence of law. To answer this, it can be used a state from 18th Century by Lord Esher: “There is in fact no such thing as judge-made law for the judges do not make the law through they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable”.[12] (willis v baddeley (1892) 2QB 324 at 326). In other words, Lord Esher points that there must be discerned between two types of law, which are the laws that are used in order to reach new opinions and rules of law. Having said that, since the second semi-centennial period of 19th Century, judges are acknowledged as lawmakers of the English Law.[13]
Constancy and Elasticity Analysis of the Common Law
There is no other equaliser factor such as judges that between organs in terms of constancy and elasticity. Judges make decisions to keep the balance in the Common Law aspects. One would say there is a powerful decree irrespective of whether precedents are fair or binding. According to a doctrine, if the courts accept the previous decision, its precedents would be guide for those courts. As a matter of fact, this doctrine presents weakness in terms of constancy of the law. Nevertheless the strictness of this law provides many advantages, in some cases it may cause to decide wrong decisions by the courts. The doctrine of binding precedent is not perfect, so there are a few gaps what this doctrine has.
As to binding precedent teaching, several gaps can be detected. Firstly, the House of Lords is not bound by its own decisions as well as the High Court. Speaking of the Court of Appeal, it is also not bound by decisions that they made in the same level. Even the Judicial Committee of Privacy Council is not bound by its own decisions. Moreover, an undesired precedent can be avoided and be put aside; it can be just used for an ultimate remedy. Lastly, appeal system does not allow to the precedents to be challenged each other by a court in the hierarchy. To sum up, there are various thoughts on stability and elasticity of the Common Law. Some says it should stay strict, the rest says it would be better if it could provide somewhat flexibility.
European Human Rights Act
All the English Courts must address to the European Court of Human Rights because of its absolute authority that has been recognised in 1988 (ketabe English law in use). Undoubtedly this supranational act outweighs, despite the fact that those rules do not bind the English courts. Having said that though, the United Kingdom courts are cautious in terms of human rights while giving their decisions, as they are aware of necessity of correct practice on human rights. Otherwise, they could encounter strict enforcements from the EU, a situation in which they would not desire to be.
European Law
The European Law has paramount importance over member states so there is apparent superiority over national legislations. The decisions given by the European Court of Justice (ECJ) displays activity as binder for all courts in United Kingdom as well. For this reason, the European Law is one of the essential sources of the Common Law. The ECJ has come up with a doctrine, which says the EU law has supremacy over the member countries through conceiving significant decisions.[14] As a matter of course, the wideness of this supranational authority occasionally causes to annulment of decisions given via national legislations including English Law. Article 3A TEU highlights that the member states are obliged to apply EU Law in any action.
Conclusion
To conclude, the Common Law would seem accretive body of law, which affects roughly half of the world countries, thanks to influence of the expansion of British Empire in the Industrial Age.[15] Its evolution to a modern body has provided an advantage with regard to its suitability of usage. One might say that the hierarchy within the range of binding among levels of courts may cause to be seen like antiquated, however such an order is needed to organise whole the process of making the law. In this essay, the aspects of the Common Law were aimed to explain. Quite so, it has been made with presenting a holistic approach due to vastness of subject.
Bibliography
- Brown G., Professional English In Use (University Press 2014)
- Cockburn T. and Shirley M., Equity (2nd edn, Lawbook Co. 2005)
- Cross R., Precedent in English Law (Clarendon Press 1977)
- Elliott C., and Quinn F., English Legal System
wwww[1] S. Worthington, Equity, (2nd edn. OUP, Oxford, 2006) p.8.
[1] London Train ways v. London Country Council [1898] A375
[1] Jones v. Secretary of State for Social Services [1972] AC 944
[1] British railways board v. Herrington [1972] AC 877
[1] Broom v Castle [1971] 2QB 354
[1] Willis v Baddeley [1892] 2QB 324 at 326
[1] Case 6/64 [1964] ECR 585, [1964] CMLR 425
[1] Richard Ward, Amanda Wragg and Ronald Jack Walker, Walker & Walker’s English Legal System (Oxford University Press 2011), pp 5-6
[2] Stephenson, C. & Marcham, F. eds, Sources of English Constitutional History, (NY:Harper & Row, 1937), pp 76-81.
[3] Matthew LeMieux., Lecturer at Universitat Osnabrück, http://slideshare.net/mblemieux
[4] T. Cockburn & M. Shirley, Equity in Nutshell,(Lawbook Co., Sydney, 2005) p.54.
[5] S. Worthington, Equity, (2nd edn. OUP, Oxford, 2006) p.8.
[6] Gillian D. Brown, Professional English in Use (University Press 2014)
[7] Richard Ward, Amanda Wragg and Ronald Jack Walker, Walker & Walker’s English Legal System (Oxford University Press 2011), p.72
[8] London Train ways v. London Country Council [1898] A375
[9] Jones v. Secretary of State for Social Services [1972] AC 944
[10] British railways board v. Herrington [1972] AC 877
[11] Broom v Castle [1971] 2QB 354
[12] Willis v Baddeley [1892] 2QB 324 at 326
[13] Lord Radcliffe, Not In Father Beds (The Quality Book Club 1968).
[14] Case 6/64 [1964] ECR 585, [1964] CMLR 425
[15] Gillian D Brown, Professional English In Use (University Press 2014)