Legal history of England and Wales

The legal history of England and Wales is the historical development of the jurisprudence and legal doctrine of the legal order of England and Wales .

The Evolution of English Law to the Judicature Acts

The period until 1485

Origin in the Middle Ages

The common law as the basis of the English case law has its origins in the Middle Ages , in the so-called. Norman Anglo- time after the conquest of England by William the Conqueror Since the Conquest (in 1066. by Germanic tribes Saxons, Angles, Jutes, Danes ) In the 6th century England the various customary laws of the individual tribes applied, which local nobles decided to apply. Even after England was politically united in the 10th century, there was still no uniform law. Rather, the local customary law was applied by the so-called county courts and hundred courts , whose jurisdiction corresponded to the division of England into counties and hundreds . The application of the law by these courts was done in such a way that it was decided which of the disputing parties had to submit to an evidence procedure that was anything but rational by today's standards in order to substantiate the correctness of their claims.

Even after the Norman conquest in 1066 , little changed in this legal practice, except that the king set up his own royal councilor , the Curia Regis , for high jurisdiction. Three royal courts split off from the Curia Regis in the 13th century:

1. The Court of Exchequer , primarily responsible for royal finance and tax matters. From this later a finance court and a finance administration were formed.
2. The Court of Common Pleas (court for general affairs), also called the common bench , is primarily responsible for lawsuits relating to property and property as well as payment of certain debts.
3. The Court of King's Bench , primarily responsible for serious criminal offenses, tort and appeals. This court also served the role of an appellate court by providing the opportunity to review and correct defective proceedings by lower courts.

Soon, however, the division of jurisdiction between the three courts was abandoned and each of the three courts could judge all matters under royal jurisdiction. In addition to the three royal courts, the non-royal courts remained responsible for all other matters, especially the county courts or hundred courts, as well as patrimonial and ecclesiastical courts .

However, this was to change gradually: only the royal courts had effective means to ensure the appearance of witnesses in court and to have the judgments carried out; only the king, with the help of the church, was able to oblige his subjects to take the oath. In addition, the judges found the king's jurisdiction far superior to all other courts. In addition, there were mounted travel judges sent by the king (English justices in eyre, Latin iusticiarii itinerantes ) who traveled all over the country and judged according to royal law. In this way, the royal courts were gradually able to expand their jurisdiction to the detriment of the county courts and hundred courts and, towards the end of the Middle Ages, exercise jurisdiction alone. The royal law, which initially existed parallel to the various local legal practices, became a uniform common law for all of England. The ecclesiastical courts remained responsible only for marriage trials and questions of church discipline.

In contrast to continental Europe in the Middle Ages, the royal common law in England created a comprehensive legal system that was also sufficiently open to innovations. While Roman or canon law later began its triumphal march through the whole of continental Europe, there was no longer any need to adopt Roman canon rules in England because of the already established legal system. That is why there was no reception of Roman law in England . However, the development of the law in Scotland was different . The Scots adopted Roman canon law , which should not be confused with common law.

The system of writs

In clear contrast to the continental European legal systems, in English law, legal action is not the classic means of enforcing a certain claim. Rather, this is done with the help of a so-called writ (to aengl. Wrītan ' to write', i.e. the written), a means that is very similar to the Roman law of action . A writ was originally understood to be the order to initiate a lawsuit from the king to the sheriff of the defendant's county, with the content to initiate certain measures to open proceedings. As such measures came z. B. the summoning of the defendant or the convening of a jury into consideration.

The legal technical difference to the lawsuit is that a writ is not a procedural means of enforcing any material claim, but the sentence ubi remedium ibi ius (literally 'where there is a means, there is a right', remedies precede rights, ie "Remedies are more important than rights"). Over time, a number of different writs, strictly formalized in their respective prerequisites, emerged, which, however, were materially only directed at a very specific type of event.

The procedure for the adoption of a writ was as follows: The writ had the applicant a fee in the royal chancery (chancery) be applied for and was sealed by the Chancellor (Chancellor). The competent court of the defendant was instructed, specifying the subject matter of the dispute, to summon the defendant or to convene a jury and negotiate the matter.

The difference to the lawsuit becomes even clearer in the writ procedure: While the lawsuit (which is more familiar to continental European law) is based primarily on substantive law, a writ is a purely procedural instrument that does not yet allow a statement to be made about the merits of a claim. Since each individual writ required the existence of different requirements, the process flow was already determined in detail by selecting the correct writ; because every writ determined the sequence of the litigation actions, the representation of the litigating parties, the admission and evaluation of evidence etc. Already in the 12th century certain typical forms for certain typical facts emerged from the multitude of writs granted in individual cases. The writs of covenant, writs of right, writs of debt and the writs of trespass developed early on into the most important of these typical writs . If no writ was available to enforce a law, the request could not be brought before the royal courts. But even those who did not choose the right writ for their request lost the process regardless of the substantive justification of their request.

The emergence of new writ offenses through extensive interpretation of already existing writs came to a provisional end in 1258: the growing number of writ offenses had led to a loss of jurisdiction for the local courts and thus a loss of power for the local nobility. The resulting power struggle with the king was decided by the barons in the Provisions of Oxford (1258), with the result that the chancellor only made new writs with the consent of the entire royal council, i.e. H. the curia regis was allowed to exhibit. By then, Henry de Bracton was able to present 56 different writs in his Tractatus de legibus et consuetudinibus Angliae (1240–1258).

For factual necessities, however, new writs were allowed again as early as 1285, whereby the restriction of royal jurisdiction that occurred with the Provisions of Oxford was lifted again. The new writs were the writs upon the case, comparable to the actiones utiles of Roman law, and the "writs in consimili casu" . The last two writs mentioned are also good examples of the development of how new writs were gradually created (in consimili casu) through extensive interpretation of the facts of existing writs and their application to similar facts .

However, the writs system suffered from an apparently inadequate protection of contractual rights. Glanvill, of whom a comprehensive collection of writs has come down to us (around 1185–1189), comments on this: “Private agreements are generally not protected by the courts of our Lord the King”. There were various ways of solving this problem: On the one hand, with the help of the writ of detinue, one proceeded from the idea of ownership. According to this, tenants, borrowers, custodians and freight forwarders were not obliged by their agreements, but by the fact that they were in charge of a foreign affair. On the other hand, with the help of the writ of debt, the form could be used. The defendant could then be prosecuted because he had acknowledged his guilt in a formal document. Possible lack of will played no role here. However, both writs were unsatisfactory in solving the problem, mainly because they could only work under special conditions. Therefore, one resorted to the writ of trespass , which soon assumed special importance among the other writs: Originally, this writ was only granted where someone with violence or in violation of the peace another in his possession of things or in his physical integrity had hurt. In other words, it is a writ that is actually supposed to sanction criminal behavior. In judicial practice, however, on the basis of the " in-consimili-casu- thinking", the facts falling under the writ of trespass were gradually expanded: First, misfeasance was also convicted of damage caused by poor performance , and a century later, too non-compliance (non-feasance) . A little later, in connection with the action of debt, there is an opportunity to take legal action if the defendant has expressly committed to the performance claimed (special assumpsit) . But it wasn't until 1602 that the breakthrough came in Slade's case: every promise also includes the obligation to fulfill it (indebitatus assumpsit) . Over a long period of time, the action of trespass on the case developed into the still known facts of tort and contract law.

The development of the writs therefore makes it clear what dominant role procedural law has in English law. Common law initially consisted of a number of different types of procedure that had to be carried out in a strictly formalized manner. The main concern of the plaintiff was therefore to choose the correct type of action so that the royal courts would find jurisdiction. The outcome of the proceedings, on the other hand, was indefinite, since in common law substantive norms only developed very gradually.

The way in which proceedings were initiated, which was very similar to Roman law, had led English practitioners to think not in terms of claims, but in terms of types of action. For medieval common law, as for Roman law, it is therefore true that sentences of substantive law only became recognizable at a later stage - as it were, as it were, as separations of procedural law in its cavities and joints .

The equity

Despite the continuous expansion of the scope of some writs, the common law was perceived by those seeking justice as rigid, immobile and thus inadequate as early as the 14th century. The reason for this lay mainly in the strictly formalized process flow, which was specified by the system of writs. This denied the Common Law Courts the opportunity to base their decisions on the principles of fairness and reasonableness (good faith). As a result, for example, the maliciously acting person could also get rights if only the complaint formula (Writ) was correct. Another shortcoming was that due to the writs' system of actions, the courts were bound to certain, few legal consequences, e.g. B. Conviction for damages, but not performance of the contract or omission of actions.

In such and similar cases, the disappointed turned to the king for justice and mercy. The courts, which were passed over in their judgments in this way, initially took no offense, on the one hand because the petitions were initially exceptions, on the other hand because the common law courts themselves owed their creation and development to the principle that one if necessary can ask for justice from the king himself.

As the number of petitions to the king became more numerous, the king delegated his authority to the chancellor, who decided initially in the name of the king and later, from the end of the 15th century, as an independent judge. So a new court came into being, the Court of Chancery . In this the Chancellor judged without writs, only by virtue of royal authority and according to his feeling for equity. As time went on, the Court of Chancery increasingly followed the principles it had established in previous decisions. The maxims on which these decisions were based solidified more and more into a set of norms of their own that stood alongside common law, the law of equity .

It should be noted that many principles of canon law were incorporated into the law of equity through the case law of the Chancellor, who until 1529 was basically a clergyman and in this capacity also confessor of the king .

The period between 1485 and 1832

After the end of the Wars of the Roses , which gave the Tudors the English crown (until 1603), the Chancellor gradually became an independent judge who spoke justice with the appropriate powers of the king. Under the rule of the Tudors, the equity jurisprudence assumed considerable scope and thus lost its previous exceptional character.

In this situation, common law ran the risk of being pushed aside or relegated to secondary areas, since both areas of law - common law and equity - had their respective advocates in the social power struggles of the 16th and 17th centuries: the jurisdiction of equity opened up widely more than common law, the types of proceedings based on the Roman canonical model and the reception of Roman law in general . This, however, enjoyed the sympathy of the English kings striving for absolute rule , since only from it the political demand for absolute bindingness of the royal will could be derived. In addition, there was the thought that the Roman law preferred by the Chancellor favored absolutism because it was limited to private law and did not bind the crown itself.

For its part, common law, with its cumbersome and formalistic technique - but precisely because of this it offers protection against direct rulers' access - became an important weapon of the London Parliament in the fight against the king's absolutist tendencies. There was also the contrast between the Chancellor's written, secret and inquisitorial procedure - always without a jury - and the oral and public common law procedure. Above all, however, the English legal profession, with its hesitant resistance to the influences of Roman law, sided with Parliament .

The conflict between the two branches of the court came to light in 1615 in the Earl of Oxford's case. The Earl of Oxford had used process manipulation to obtain a judgment from a common law court, the execution of which in the equity court could only be prevented by threat of his own imprisonment. By taking sides with the king in the case, the court of chancery has since been able to prevent the execution of a judgment of the common law courts under threat of imprisonment (subpoena). At the same time, however, this decision also represented a compromise between equity and common law: On the one hand, the principle Equity shall prevail has applied since then , according to which equity takes precedence over common law in cases of conflict . On the other hand, it was now the case that equity should only fill the gaps left by common law in order to be able to offer general legal protection, which is expressed in the maxim equity follows the law . As a result, the conflict between common law and equity was resolved in that equity complemented common law, but no longer replaced it as a whole. To this day, there is also a tendency in the Anglo-American legal system to see common law as the law of the common people (hence common ), which is contrasted with equity as well as the law of the chancery (or the respective supreme court) and statutory law which is decided by parliaments.

Common law prevalent today

The eighteenth century was an era of domestic peace for England, while common law and equity developed quietly and continuously. An outstanding development during this time, however, is the enormous geographic expansion of English law. So was z. B. as early as 1608 in the case of Calvin v. Smith decided that English law should be applied in the English colonies in North America . This process was caused by the founding, settlement and conquest of British colonies in almost all parts of the world. The later USA , most of Canada , Australia , New Zealand , the Indian subcontinent and a large number of other countries in Africa and Asia were particularly affected by this development .

Despite the later independence of these areas, English law has been retained there until today (exceptions: Québec in Canada, Louisiana in the USA and partly South Africa ) as the basis of legislation and case law.

• See also: United States law

The period between 1832 and 1875

Since the end of the 18th century there has been increasing demand for a radical reform of traditional law and the promulgation of a general codification. The most important exponent of this age, which is also called the age of reform in England , was the social reformer and lawyer Jeremy Bentham (1748–1832). This and other representatives of utilitarianism saw in the historically grown rules of common law , which were often based more on historical chance than on rational planning, nothing more than obstacles on the way to a large-scale social reform.

The call for a total codification of common law did not find sufficient echo, however, since for most English lawyers it was beyond question that the established English law cannot be replaced by a code of law that has been worked out at the green table and is based on socio-philosophical guiding principles.

Nonetheless, Bentham's demands had a great influence on English legal development in the 19th century. However, as in the past, the focus was less on substantive law than on the reform of the court system and procedural law.

The initiation of proceedings by writs was abolished in several steps in 1832, 1852 (Common Law Procedure Acts) and 1873 (Judicature Acts) . In 1857 ecclesiastical jurisdiction was abolished and in 1870 the possibility of direct condemnation by parliament through a Bill of Attainder .

Influences of Roman law

At the time of the rediscovery of Roman law in Europe in the 12th and 13th centuries, common law had already developed so far that the adoption (“reception”) of Roman law , as it took place on the continent, did not prevail here. Even so, the earliest common law scholars, Glanvill and Bracton in particular, as well as the earliest royal judges, were quite familiar with Roman law. Often it was clerics who were trained in (Roman) canon law. One of the earliest and most important treatises in the history of common law, Bractons De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the structure of law in Justinian's institutions.

The influence of Roman law decreased sharply after Bracton, but the Roman legal division of the lawsuits into in rem and in personam, which had been taken over by Bracton, had lasting effects and laid the foundation for a revival of Roman legal structural concepts in the 18th century. and 19th century. Evidence of this can be found in Blackstone's Commentaries on the Laws of England , and ideas about Roman law regained importance, particularly with the revival of law teaching in universities in the 19th century. One consequence of this development is that today the fundamental division of law into property law, contract law, tort law and, to a certain extent, unjustified enrichment, can be found in civil law as well as in common law.

The Judicature Acts

As a result of the Supreme Court of Judicature Acts (1873, in force since 1875), the previously isolated legal channels were transformed into a closed, hierarchical system, with the newly created High Court of Justice at the top. In this, the three common law courts and the Court of Chancery were merged, but the old division into individual departments survived. Nevertheless, since the judicature acts, both common law and the rules of equity have been applied by all departments side by side.

The judicature acts also had serious effects on the traditional system of writs. Until then, the plaintiff was faced with the problem of making a binding decision on one of around 412 different writs before the start of the process, after which the entire procedure was determined. From now on, every trial before the High Court of Justice was initiated by a writ of summons . This made it unnecessary to specify a specific type of claim and reduced the risk for the claimant of losing the process due to purely formal errors. The modern development of English common law was initiated with the judicature acts , whereby the focus of the reform continues to be on the modernization of procedural law and judiciary law and less on substantive law.

Individual evidence

1. ↑ Dominik Nagl: No Part of the Mother Country, but Distinct Dominions - Rechtsstransfer, Staatsbildung und Governance in England, Massachusetts and South Carolina, 1630-1769 . Berlin 2013, p. 99ff. On-line
2. ↑ Konrad Zweigert, H. Kötz: Introduction to Comparative Law . 3., rework. Edition. Mohr, Tübingen 1996, ISBN 3-16-146548-2 , pp. 177-201 .
3. ↑ Earl of Oxford's Case (1615) I Ch Rep I, 21 ER 485
4. ↑ Calvin v. Smith, 77 Eng. Rep. 377 (KB 1608)
5. ^ BRC van Caenegem: The Birth of the English Common Law. 2nd ed. Cambridge 1988, pp. 89-92.
6. ^ B. Peter Birks , Grant McLeod: Justinian's Institutes. Ithaca, New York 1987, p. 7.
7. ^ B. George E. Woodbine (ed.), Samuel E. Thorne (transl.): Bracton on the Laws and Customs of England, Vol. I (Introduction). Cambridge, Massachusetts 1968, p. 46; Carl Güterbock: Bracton and his Relation to the Roman Law. Philadelphia 1866, pp. 35-38.
8. ^ Stephan Buhofer: The structuring of a law: The common law and the Roman institutional system. In: Swiss Journal for International and European Law (SZIER / RSDIE) 5/2007, p. 24; Ulrich Ziegenbein: The distinction between real and personal actions in common law. Diss., Berlin 1971, p. 73.
9. ^ Peter Stein: Continental Influences on English Legal Thought, 1600–1900. In: Peter Stein: The Character and Influence of the Roman Civil Law. London and Ronceverte 1988, p. 223 ff.
10. ↑ See generally Stephan Buhofer: The structuring of a law: The common law and the Roman institutional system. In: Swiss Journal for International and European Law (SZIER / RSDIE) 5/2007 (download the English version: http://www.szier.ch archive).