Teacher Resource 2–The development of English Law
English law developed from a variety of sources over a long period of history.
Prior to the Norman Conquest in 1066 there was no unified legal system. Laws were localised and often based on customary practices. After 1066 this began to change. William the Conqueror sent out ‘itinerant justices’ to collect the most practical of the existing methods of resolving disputes and dealing with crimes. These were then brought together into a unified body of law, known as the ‘common law’.
Custom may still be referred to when deciding legal cases, but its significance is very limited in modern law. In some local disputes, often involving the right to access or use a particular piece of land – for example by fishermen claiming a right to dry their nets in a certain place – it may have a relevance. Custom has been defined as ‘such usage as has obtained the force of law’ - Tanistry Case (1608).
However, in Dudley and Stephens (1883) the judge was extremely reluctant to allow the sailors charged with murder a defence based on customary practice. They had argued that in in killing and eating the cabin boy (when shipwrecked and adrift without food for 20 days) they had been merely following the established ‘custom of the sea’ in such cases. This argument was robustly rejected. The judges did not want custom to play any part in such a serious crime as murder.
Common Law and Equity
The early common law developed its own civil court system. Actions were started by issuing a writ. No writ, no remedy. But the range of available writs was limited in the thirteenth century and this led to stagnation in the development of the law. At common law the only remedy was damages. This was not suitable for all cases. It left some claimants without a remedy.
Litigants who felt aggrieved began to petition the king for redress. These petitions were passed to the Chancellor who resolved them on behalf of the king. Ultimately the Chancellor was petitioned directly and he would decide these cases on moral principles. The system was known as equity. It is a distinctive feature of the English legal system. The Court of Chancery developed rules of equity and new remedies such as injunctions and specific performance. It was popular because it introduced flexible decision making where the common law was bound by precedent.
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Nature of Law
When equity clashed with the common law the question arose as to which system was superior. Was it common law or equity? The issue was decided in the Earl of Oxford’s case (1615). Equity would prevail where the two systems were in conflict. This allowed equity to continue its role of filling in the gaps in the common law. Over time equity began to develop in a much more formal way with its own system of precedent and rules. In the Judicature Acts 1873-75 the two areas of law were brought together. Both equitable and common law remedies were made available in the same court. Equity is a particularly useful tool in the area of property and trust law.
Equity developed certain maxims - or guiding principles - to ensure that the decisions made in equity were based on morality and fairness.
Examples of these maxims: Delay defeats equity. He who seeks equity must do equity. He who comes into equity must do so with clean hands.
Statutes are made by Parliament, consisting of the House of Commons and the House of Lords and the Queen. Under the theory of Parliamentary Sovereignty these laws are seen as superior to any other source of law. This is because Parliament is our democratically elected body. Statute is the most modern and most generally accepted form of law. Parliamentary time is however sometimes quite limited and some of the law making has to be delegated to specialist committees.
What are the main strengths and weaknesses of each source of law? Fill in the table below.
AnswersSource of law / Advantages / Disadvantages
Custom / Based on local practice.
Established over a long period of time.
Useful in some property disputes. / Difficult to prove. Little documentary evidence.
Difficult to define the extent of the custom.
Of limited general scope.
Common Law / Unified legal system.
Based on a strong system of precedent, producing certainty in the law. / Originally quite rigid in its application.
Requires legal cases in order to develop.
Limited ability to create new areas of law.
Equity / Contain an element of ‘fairness’ or ‘morality’.
Provides remedies where the common law fails. / Dependent upon the discretion of the judge.
May conflict with the common law.
Statute / Based on Parliamentary Supremacy and seen as a ‘democratic’ source of law.
High degree of validity.
Law is specific, detailed and accessible to all.
Can respond to social, moral and technological changes. / Can be a slow way to develop the law, dependent on government priorities.
Law making can be delegated, taken out of the hands of elected officials.
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Nature of Law