T1 Roots of English Law Timeline

Roots of English Law Timeline

• 1066: The Norman Conquest saw William the Conqueror introduce the feudal system and centralize legal authority, which became the foundation for English common law.
• 1154-1189: Henry II's Reforms established royal courts and sent judges on circuits, creating a unified system of common law based on precedent.
• 1215: Magna Carta limited the king’s power, establishing principles of justice and rule of law.
• 1285: The Statute of Westminster II formalized the development of common law and introduced legal remedies.
• 15th-16th Century: The Court of Chancery emerged to provide fair remedies where common law was rigid or unfair
• 1608: In the Case of Prohibitions, Sir Edward Coke asserted the supremacy of common law over the king.
• 1765: Blackstone’s Commentaries by Sir William Blackstone codified and explained English common law, influencing legal systems worldwide.
• 1788: English law was formally introduced to Australia with the arrival of the First Fleet during the Colonization of Australia.
• 1823: The New South Wales Act established a Supreme Court in Australia that applied English law.
• 1828: The Australian Courts Act confirmed that English laws in force at the time applied in Australian colonies.
• 1901: Australia became a nation with the Federation of Australia, but English law remained influential.
• 1931: The Statute of Westminster granted Australia legislative independence from Britain, though ties remained.
• 1986: The Australia Acts ended appeals to the Privy Council, establishing the High Court of Australia as the final court of appeal, marking Australia's full legal separation from England.

Birth and Formalization of Common Law

• Common law refers to a unified system of law that applied commonly across England, replacing varying local customs and laws.
• Common law began in England after the Norman Conquest (1066), which saw William the Conqueror centralize legal authority.
• Royal courts were established and judges developed a unified system based on precedents and customs, creating a consistent body of rulings.
• The creation of court structures in England also began with the Norman Conquest (1066), when royal courts were established to centralize justice and replace local systems.
• Courts developed into a hierarchy including common law courts (e.g., King’s Bench) and equity courts (e.g., Court of Chancery), creating a structured legal system that influenced modern judicial systems.

Writ system

• The writ system was an attempt to make court procedure more formal, regular, and efficient.
• Templates were formulated for different writs/complaints.
• A plaintiff purchases a writ from a royal official/chancellor to summon someone to court for a jury trial.
• The 1258 Provisions of Oxford saw Nobles stifle the development of writs, suspecting common law was undermining their control of peasants.
• Legal fictions were invented to solve disputes not originally covered by the writs.
• Writs were abolished in the extensive procedural reforms of the 19th century.
• Writs echo modern day procedure, where a plaintiff must find an appropriate cause of action before suing.

Trial Procedures in Early Common Law

• Curia Regis (King's Court) was divided into three bodies that make up common law courts.
• The Court of Common Pleas was a court of professional judges hearing common peoples' disputes; in 1215 the Magna Carta assigned it a fixed address at Westminster.
• The Court of Exchequer dealt with disputes of royal revenue/treasury/finance.
• ‘Coram Rege' (King's Bench) was a court of traveling justices carrying the Kings commission, resolving disputes affecting royal interests.

Equity

• Equity originated as a response to the rigidity and limitations of common law, offering fair and flexible remedies where common law was inadequate.
• Equity developed through the Court of Chancery, which applied principles of conscience and justice to resolve grievances that common law courts could not resolve.
• It was highly discretionary and depended on the notions of fairness held by the Chancellors presiding over each case.

Reform of Court Procedure in the 19th Century

• Court procedure reforms in the 19th century streamlined and modernized the legal system.
• The Uniformity of Process Act 1832 made pursuing legal help more accessible and simplified.
• The Judicature Acts of 1873–1875 in England merged common law courts (Exchequer, Common Pleas, and King's Bench) and equity courts (Court of Chancery) into a single system (Supreme Court of Judicature).
• This simplified procedures and ensured consistent application of both legal principles.
• The new Supreme Court of Judicature consisted of The High Court, which was a trial-level court.
• The High Court was divided into five divisions and had a single set of rules and a common procedure.
• The new Supreme Court of Judicature consisted of a civil Court of Appeal.
• The Judicature Acts allowed a judge to apply the rules of common law, equity, or both as deemed appropriate.

Common Law Principles Over Time

• Common law principles became the basis for key areas of private law.
• Property Law: Governs ownership and use of land and goods.
• Contract Law: Regulates agreements and obligations between parties.
• Tort Law: Addresses civil wrongs and compensation for harm.
• Common law transitioned from a procedural system (writ law) to a substantive body of law governing private relationships and disputes.
• Similar reforms occurred in other jurisdictions, like Australia, to improve access to justice and reduce delays.

Foundations of Modern Constitutionalism

• Constitutional law was developed to resolve conflicts and regulate the relationship between the Crown institutions.
• Key aspects of constitutional law include:
  • Separation of powers between executive, legislative, and judiciary
  • The Rule of law constrains arbitrary power, requiring compliance with the law
  • Parliamentary sovereignty: a democratically elected parliament can change/develop law
  • Responsible Government: power of the executive is given to the political party supported by the more representative House of parliament.
• In Britain, constitutionalism relies on the uncodified constitution, which includes statutes, conventions, and common law to limit government power and protect rights.
• In Australia, constitutionalism is embodied in the written Constitution (1901), which establishes a federal system, separation of powers, and judicial review while maintaining ties to British legal traditions.
• Both systems emphasize the rule of law, limited government, and protection of rights.

Magna Carta and the First Parliaments

• The Magna Carta (1215) was an agreement between King John of England and his barons, establishing that the king was subject to the law and protecting rights like fair trial.
• Magna Carta promised that:
  • The Common Pleas would be heard in a fixed place.
  • Justices and sheriffs would be appointed from those learned in the law.
  • Freemen would not be imprisoned or dispossessed except by the lawful judgement of their peers or by the law of the land.
  • Justice would neither be delayed nor denied.
• The first parliaments emerged in 13th-century England as assemblies of nobles, clergy, and representatives, evolving into a key institution for limiting monarchical power and shaping representative democracy.
• Parliaments grew more powerful, and it was decreed in 1414 that no new statutes should be made without the assent of the Commons (the Lower House).
• The House of Lords included nobles, clergy, and peers.
• The House of Commons included local representatives elected by vote.

The First Parliaments: Limiting Royal Power and Parliamentary Supremacy

• In the 17th century, power shifted from the monarchy to Parliament.
• The 1642–1651 English Civil War had Parliament, led by Oliver Cromwell, fight against King Charles I. This conflict reinforced Parliament's authority over the monarchy, resulting in the king's defeat and execution.
• The 1689 Bill of Rights limited the king's power, ensuring Parliament's control over taxation, laws, and the army, and establishing principles such as free elections, free speech, and the prohibition of cruel and unusual punishment.
• The constitutional monarchy by the end of the 17th century resulted in:
  • Parliament holding supreme authority, including the right to levy taxes.
  • The executive becoming subservient to Parliament.
  • An independent judiciary was established, free from political interference.

Act of Settlement 1701

• The Act secured judicial independence by ensuring judges could only be removed for misconduct.
• Section 72(ii) of the Australian Constitution mirrors this principle, granting Australian judges security of tenure and fixed salaries.

Modern Implications

• Royal Assent is now a ceremonial act, as Parliament is sovereign.
• The monarch technically grants royal assent to laws passed by Parliament.
• Parliament has the ultimate authority to make and pass laws, and no higher authority can override its decisions.

Summary: Transition to Parliamentary Sovereignty

• Highlights the transition from absolute monarchy to parliamentary sovereignty and judicial independence.
• The Bill of Rights (1689) and Act of Settlement (1701) were pivotal in establishing these foundations, ensuring that power is balanced, accountable, and free from undue interference.

Reformation and Parliament

• The Reformation (16th century) challenged the authority of the Catholic Church.
• This movement strengthened Parliament’s role in England, as monarchs relied on it to pass laws, such as the Act of Supremacy 1534.
• This act broke ties with the Pope and established the Church of England.

English Civil War

• The English Civil War (1642–1651) was a conflict between Parliamentarians and Royalists over the balance of power.
• Parliament, led by Oliver Cromwell, sought to limit the king's authority and ensure parliamentary control.
• Parliamentarians won, resulting in the execution of Charles I (1649) and the establishment of the Commonwealth.

The Glorious Revolution and the Constitutional Settlement

• The Glorious Revolution (1688) was a bloodless coup in which William of Orange and his wife Mary were invited to overthrow King James II.
• The Constitutional Settlement established key principles of modern constitutional monarchy.
• The Bill of Rights (1689) limited the monarch's power, affirmed Parliament's authority, and guaranteed rights.
• The Act of Settlement (1701) secured Protestant succession to the throne and judicial independence.

Emerging Role of Parliament

• Parliament began as an advisory body to the monarch (Curia Regis).
• The House of Lords represented the aristocracy, and the House of Commons represented towns and counties.
• Conflicts like the English Civil War and the Glorious Revolution established Parliament's supremacy over the monarchy, and enabled control over taxation, laws, and governance.

Modern Structure of Parliament

• The House of Commons includes elected representatives who propose and debate laws.
• The House of Lords includes appointed members who review and amend legislation.
• The functions of parliament are to make laws, scrutinize the government, and represent the people.

Development of an Executive Arm of Government

• Separation of powers entails:
• Parliament (the legislature) enacts laws.
• The executive puts the laws into operation.
• Courts (the judiciary) resolve individual disputes regarding the meaning or application of the law.
• The executive arm of government has evolved from royal advisors to a structured system of Cabinet ministers and departments that is supported by an apolitical civil service.
• This system ensures accountability, efficiency, and a clear separation between political decision-makers and administrative implementers.
• Cabinet Ministers developed out of advisors of general policy.
• Secretaries of State (Ministers) developed out of royal advisors who head the departments at Westminster i.e. Chief of Treasury became Prime Minister.
• Ministers must be members of Parliament, ensuring responsible government where the executive is accountable to the legislature.
• Australia adopted the Westminster system of responsible government, where members of the executive are key members of the legislature, namely the Prime Minister and the Cabinet.

Rule of Law

• A doctrine of constitutional law, provides a shield against despotic government, legality, equality, and high certainty predictability.
• The law should be accessible so people know their rights and responsibilities.
• People affected by government power/law should have a means of testing its lawfulness with due process.

Theories of Law Jurisprudence

• Natural Law Theory: human nature law/morals, human rights, and an unjust law is not law and moral principles.
• Legal Positivism Theory: law is a general declaration of the will of the sovereign regardless of morality.
• Feminist Jurisprudence: law needs to address power imbalance.
• Economic Analysis of Law: goodness/badness of a law is measured by economic efficiency.
• Critical Legal Theory: law serves the elites and people are not free.