Birke Häcker, University of Oxford, MT 2017
[email protected] INTRODUCTION TO THE COMMON LAW FOR CIVIL LAWYERS LECTURES 1 & 2: HISTORICAL AND CONSTITUTIONAL BACKGROUND I. INTRODUCTION II. WHAT IS THE ‘COMMON LAW’? 1. Meanings of the Term Common Law ↔ Civil(ian) Law Common Law ↔ Statute Law Common Law ↔ Equity 2. Historical Development: Some Landmarks Norman Conquest of Britain (AD 1066) Establishment of the Court of King’s Bench, Common Pleas and Exchequer The Practice of Law Reporting An example of so-called Law French: ‘Richardson, C. J. de C. B. at Assizes at Salisbury in Summer 1631, fuit assault per Prisoner la condemne pur Felony; que puis son condemnation ject un Brickbat a le dit Justice, que narrowly mist. Et pur ceo immediately fuit Indictment drawn pur Noy envers le Prisoner, et son dexter manus ampute et fixe al Gibbet, sur que luy mesme immediatement hange in presence de Court.’ System of Writs and Forms of Action Development of Equity in the Court of Chancery Relationship between Equity and the Common Law Judicature Acts 1873–75 3. Spread of the Common Law Worldwide Former colonies Mixed legal systems Divergences between common law systems 4. Relationship with the Civilian Tradition III. THE CONSTITUTIONAL SETUP 1. England, Great Britain, United Kingdom 2. Basic Tents of the ‘Constitution’ Constitutional Monarchy Rule of Law (Magna Carta Libertatum 1215, Bill of Rights 1689) Sovereignty of Parliament / Parliamentary Supremacy * A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885): ‘The principle, therefore, of Parliamentary Sovereignty means neither more nor less than this, namely that “Parliament” has the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ * European Communities Act 1972 and Human Rights Act 1998 and their implications.