Common Law As A Legal System

COMMON LAW AS A LEGAL SYSTEM

Common Law and Civil Law

When defined in this way the term ÐŽ§common lawЎЁ is used to refer to a type of legal system called the common law legal system. The legal systems of various countries are modeled on the English legal system and these countries are said to have a ÐŽ§common law legal systemЎЁ. This includes most of the British Commonwealth and the United States. The common law legal system involves such matters as trial by jury, presumption of innocence etc. The term also denotes the fact that these said countries would have ÐŽ§receivedЎЁ the English common law when they were colonized or otherwise conquered by the British Empire.

The term civil law in this context also refers to a type of legal system. Civil law countries are those countries which have legal systems or procedures modeled on the Continental European system of law. Certain Caribbean countries have a mixed common law and civil law system because of their histories. Two of these are St. Lucia which has aspects of the French Civil Code and Guyana which has remnants of Roman Dutch law.

COMMON LAW AS A SOURCE OF LAW

Common Law and Statute Law

Common law as a source of law refers to the body substantive law developed by the court over time in the decisions of various cases. This definition is based on a system of precedent which will be discussed later. Before discussing the system of precedent, it is necessary to look at the development of the English Court system. Precedent or common law in this context is also referred to case law i. e. law that developed from actual court cases.

In its early history, the English Court system involved a number of courts. These were the Curia Regis, the Court of Exchequer, the Court of KingÐŽ¦s Bench, the Court of Common Pleas, and the Court of Chancery (discussed earlier).

The Curia Regis

The development of the English Common law court system began with the Curia Regis, the king's feudal council to which he summoned his tenants in chief (persons who rented lands directly from the King), the great barons, and the great prelates (bishops). The Curia Regis was introduced into England by William the Conqueror. The Curia Regis, more commonly called the great council, had only quasi-legislative powers but was primarily a judicial and executive body. Originally, the King was the fount of all justice but gradually, the power to adjudicate in disputes including those in which the king had an interest were delegated to members of the Curia Regis, particularly those schooled in the law. From that delegated authority, certain specialized courts developed.

Court of KingÐŽ¦s Bench

The Court of KingÐŽ¦s Bench was the highest court of law in England in the middle Ages. It grew directly out of the Curia Regis. Originally, it was the principal court for criminal cases, and the place to hear disputes between the citizens and the King. It gradually became a civil court also, serving as an appellate court that had the jurisdiction to uphold or overturn judgments made in the Court of Common Pleas.

The Court of Common Pleas

This was a royal court applying Common Law to judge civil disputes.

It was called "common pleas" to denote suits not involving the King.

It sat in Westminster Hall from the early thirteenth century onwards. Nearly all civil suits were within its jurisdiction, and it also had jurisdiction over local courts. The Court of Common Pleas was the chief creator of Common Law precedents. The appellate court for its decisions was the Court of King's Bench. The Court of Common Pleas was merged into the High Court by the Supreme Court of Judicature Acts 1873-75.

The Court of Exchequer

This court originated after the Norman Conquest as a financial committee of the Curia Regis. Within a hundred years it had a separate organization and was responsible for the collection of the king's revenue as well as for exercising jurisdiction in cases affecting the revenue.

Over time, its jurisdiction over common civil matters steadily increased, to include money disputes between private litigants. This was made possible by the creation of a legal fiction that assumed that the plaintiff was indebted to the Crown and needed payment from the defendant to enable him to pay the king.

Statute Law ÐŽV is law that is written down and passed by both houses of Parliament. Statutes are also called legislation. That which is enacted in Parliament becomes the law of the country. Statutes while being a category of law are also a source of law.

STATUE LAW AS A SOURCE OF LAW

Parliament is given responsibility by the constitution to make laws for the peace order and good government of the country. It may repeal earlier laws, overrule laws developed in the courts or make new laws on subjects which are not regulated by existing ones;

Legislation is binding on judges who must apply relevant legislation however distasteful they may personally find it. However, judges have to interpret legislation and they may find a meaning in a statutory rule which Parliament did not intend. In practice, Parliament usually follows certain presumptions which serve to limit its freedom to make laws. Parliament does not, for example, usually enact statute law with retrospective effect or deprive citizens of their property without compensation. In addition to making new laws and altering existing ones, Parliament may make the law clearer by passing a codifying statute to put case law on a statutory basis, or by making a consolidating statute to incorporate an original statue and its successive amendments into a single statue.

There is a procedure for passing legislation and it usually begins with the preparation of a Government Green Paper. (A Green Paper contains ideas about a particular subject that is published by a government so that people can discuss them before any decisions are made.) The Green paper is disseminated to societal interest groups. Once comments on the green paper are received, a White Paper is produced which sets out the aim of the legislation. (In other words, a White Paper reports the policy of a government on a particular subject.) The material in the white paper is then put forward in the form of a draft statute called a bill, and is introduced in the lower house of Parliament

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