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
Mainly:
Public:
Private:
Types of relief:
Money damages
Equitable relief: specific performance
Penalties
Contractual remedies:
Offer & Acceptance + Consideration
Breach: expectation damages (-duty to mitigate), reliance & exceptionally (negative) specific performance
Torts:
Compensation & punitive
Criminal penalties
Criminal Law vs. Torts