6/3/12 DO READING: CHAPTER 1 and 2

Lecture 2: Development of the Common Law in England Dont learn dates in chapter 1 Customary Law: The law that develops from customs within a particular society Not based on any written law (ie. Not based on the judgment of a court or a statute of parliament) Passed down through generations Connected with survival in everyday life Roman invasion of Britain brought codified, sophisticated law Only applied to the Romans The Dooms: An attempt to codify existing customary law SLIDE FOUR IMPORTANT The Dooms has no significant impact on the development of a common law in England BECAUSE centralization of justice in England was yet to be achieved The centralisation of justice in England was an important issue in the eventual development of a common law in England Defeat of the Anglo-Saxon King Harold by William the Conqueror at the Battle of Hastings in 1066 -> William becomes the first Norman king - no change to existing Anglo-Saxon Law WHY? William claimed to be the legitimate successor to the English throne. Also there was a practical difficulty in replacing existing Anglo-Saxon Law READ CHAPTER 1 PART ABOUT CONTINENTAL FEUDALISM Following the Norman Conquest Position in relation to land was different: continental feudalism; Norman land law and the Kings court Disputes over land brought before the kings court Over time a body of land law developed that was applied throughout England The body of land law was an important early influence on the mergence of a common law in England Government centralised which provided the basis for a centralised system for the administration of justice in England A centralised system for the administration of justice provided the basis for the unification of laws across England A common law had not been created at this time (1066-1087) because local customary laws played a crucial role Henry 11 and the centralisation of justice administration Was necessary to provide an institutional structure through which royal judges could start to develop a body of rules which would eventually constitute the common law Development of common law also depended on court procedures such as the writ system (SEE WHAT BOOK SAYS ABOUT WRIT SYSTEM) Common law did not eventuate under his reign (1154-89) but the reforms put in place a platform for its development

The emerging English Legal System: SEE BOOK The jury The Central Courts The Writ System The Register of Writs and development of an inflexible body of common law rules based on specific writs Law became an incredibly technical and inflexible entity The inflexibility of the common law as the basis for the emergence of a separate body of law; namely the principles of equity

Read Material covering Itinerant Justices and the general heir (page 9) Rise of constitutional Law in England Magna Carta the rule of law and due process o Chapter 39 No person can be charged with a criminal offence of be deprived of civil rights or possessions except through the due process of the law o Chapter 40: The government is subject to the law Emergence of parliament o The developing wood trade in the early 13th century connected various parts of England and provided the platform for the emergence of a sense of nationhood previously there had been no sense, hence no use of the word parliament o Provisions of Oxford 1258 Prevented the Chancellor from issuing any new common law writs to cover new circumstances Repealed 1266 Following this petitions could still be made to the King in Council whereby they were referred to the Chancellor Emergence of the principles of equity Glorious Revolution of 1688 o Played a critical role in the rise of constitutional law in England 3 fundamental principles: Liberty Constitutional Monarchy Transformed the relationship between Crown and parliament, with both now having roles in the functioning of government Constituted a constitutional democracy Parliamentary supremacy The Crowns powers developed through common law, which became subject to, and could be changed by, the statutes enacted by Parliament Power to conduct foreign affairs Power to conduct war and peace Power to enter into international treaties

The common law is subject to modification by statute law passed within the constitutional authority of the parliament Queensland Civil Liability Act (2003): This is an example of a statutory modification of an existing common law Natural justice is the idea of the right to a fair trial by an unbiased tribunal, knowing fully what the claim that has brought against you is

Equity The Exchequer (a revenue court), the Court of Common Pleas (a common law court) and the Kings Bench (essentialy dealt with breaches of the kings peace and criminal matters), were established during the 13th century Establishment The Court of Chancery in the 15th century o Separate common law and equity courts o LAW VERBATIM: At common law and in equity Courts of equity had discretion as to whether to provide equitable relief Equity was and still is a supplementary jurisdiction in the sense that it was only available where the common law did not provide an adequate remedy The Judicature Acts of 1873 and 1875: created a Supreme Court of Judicature which could hear disputes at common law or in equity

Common Law, Equity and Statute Law If theres a conflict between equity and common law, equity prevails Although the administration of both common law and equity was through the same court, common law and equity as bodies of law remained separate Statute law prevails over common law Waltons Stores V Maher (1983) Walton Stores negotiated with Maher to lease land Maher to demolish existing building Maher signed final documents and started work, Waltons changed its policy and ordered a go slow from solicitors Under the rules of contract law, no contract was in place due to a lack of exchange of documents, which had not been properly executed by Waltons Stores Statute law is essentially saying that a contract in these circumstances must be written not withstanding any other rules of common law Maher commences an action in equity o Justice Brennan: to establish equitable estoppel, it is necessary for a plaintiff to prove that The plaintiff assumed a legal relationship existed between the plaintiff and defendant, or would come into existence, and in the latter case, that the defendant would not be free to withdraw The defendant has induced the plaintiff to adopt that assumption or expectation The plaintiff acts or abstains from acting in reliance on the assumption or expectation The defendant knew or intended him to do so The plaintiffs actions or inaction will occasion (cause) detriment if the assumption or expectation is not fulfilled or otherwise The application of equitable estoppel did not create any contact between Waltons Stores and Maher. The damages were through equity, not through common law (contract law) This was the first time a plaintiff was able to use equitable estoppel to recover damages. Prior to this, it had only been available to a defendant Was able to use this because Section 54A(1) the Conveyancing Act 1919 (NSW) because there was no mention of equity

Tutorial 1. Customary law developed over a period of time through tribal customs which were passed from generation to generation, significantly linked with survival. Wasnt centralized, wasnt written down and wasnt consistent. Widely accepted because the people were involved in its development 2. Significantly helped the rise of a sense of nationhood. Also put the power into the hands of the land lords. Monarchs could not provide adequate protection for the people, therefore landlords took the onus, providing protection in return for services. Provided a basis for common law. First time powers and law are centralized. 3. His reforms included the centralization of justice administration, which allowed the judicial infrastructure where a body of rules could be formed, providing a platform for the rise of Common Law. Took the power away from the landlords 4. Allowed matters to be brought to the attention of a legal body, however required the correct writ, failure to do so would result in the trial being thrown out. A command which told the people what they can or cant do. Writs came from the king rather than the people. When first introduced, Writs werent written and flexible, with others to be added based on needs. As time passed, they became recorded and as a result, much more rigid. 5. Glorious revolution of 1688 played a critical role in the rise of constitutional law in England, revolving around 3 key principles: Liberty, constitutional monarchy and parliamentary supremacy. By overthrowing James II, an England monarch never held full power ever again given the rise of a constitutional monarchy. This combined the powers of the Crown and the parliament together, allowing each roles in the functioning of the government. There was a shift in power, with the crown now subject to the parliament. The rise of parliamentary supremacy meant the crowns powers (derived from common law) were subject to statute law. These principles can be seen today, reciprocated in both the modern English and Australian legal systems. 6. It provided a 24 member parliament, half chosen by the king and half by baronial council, representing the early stages of representative government in England, an important step towards constitutional law. Created the first parliament! Werent enforced for very long. Saw the emergence of equity. 7. Statute Law takes supremacy over both the common law and equity. The Parliaments intention in passing statutes is to override or alter the way a particular aspect of the common law operates. In matters of equity and common law, equity takes supremacy. Its role is to provide a remedy that is not available through common law, exemplified by Waltons Stores v Maher, where s54 that no contract law action could be brought before a court, however equitable estoppel was permissible, and ultimately successful Statute law will prevail, only when parliament intends it do In this case, parliament intended it to prevail over contract law, no mention of equity in the provisions Estoppel stop stopping a course of action/ behaviour What somebody believes or assumes, based on past behavior like legal actions and negotiations/ agreements Link Q5 to understanding the assignment