Common law emerged mainly as procedural.
Common law as we know it today has evolved since 1066.
At the beginning, it was greatly influenced by aboriginal law.
But also by Roman Law as in contracts.
Islamic law as in the teaching of law in the Inns where in Oxford and Cambridge they taught Roman Law.
Law was administered by local people, who served in juries and applied their local laws. They were monitored and supervised by professional judges who had the confidence of the King, the French King. So, they traveled around the British Isles in circuits.
Then it was no longer possible to apply local law so they decided to apply a general more common law to all towns, i.e., the same everywhere, in every county. But there was no such thing as a common law. But since there was not much in common the only way was to create new law and soon these judges started to make law, which was commonly applied. This is the origin of common law and one of its main characteristics.
So common law is born –and exists today- as a law created by judges and closely connected to trials, i.e., procedure. Adversarial process of adjudication: the judge is simply an arbiter. It is the parties through their lawyers that move forward the case.
Jury decides the facts and the judge the law.
Case and controversy: standing, ripe (not moot) and jurisdiction no political questions.
Juries: distrust. They can’t read. Everything has to be read. So, now whatever document they should analyze is mediated by the lawyers, as if they were still illiterate. And the whole evidence rules reflect also a profound mistrust of jurors. There are these sets of rules that have the objective of hiding things from jurors.
For example, whenever a lawyer objects, & if the judge sustains that objection, then the jurors are deprived from knowing about that question. This is so because the system doesn’t trust the jurors. It considers them incapable of understanding, of giving the right value to the question or piece of evidence objected to.
Stare decisis: precedent: of a higher court must be followed, unless considered no longer good law.
There was just that at the beginning in the 11, 12, 13 and 14 centuries.
An essential feature of common law at this time was the writs, i.e., a permission to appear before the courts. You had to ask the King to give you permission to appear before the courts. If you didn’t have a writ you couldn’t do anything.
Common law grew during the feudal society so there were no RIGHTS. For example, in property the highest degree of ownership was to hold title fee simple absolute over a property.
Each writ gave rise to a particular procedure to be followed. Outside the writ there was no CL. No way to state a case before a court. A writ took the form of instructions from the Crown. CL came to be composed of a series of procedural routes usually referred to as Remedies. There was no external law. The law was the writs. So there was no substantive law. So no one outside the court knew what the law was.
Gradually, writs began to fill extensive fields of human activity, i.e., fields of substantive law.
So, we’ll now see what these routes –remedies- are in CL
Types of relief:
Equitable relief: specific performance
Offer & Acceptance + Consideration
Breach: expectation damages (-duty to mitigate), reliance & exceptionally (negative) specific performance
Compensation & punitive
Criminal Law vs. Torts