98 terms

LLB London : CLRI chapters 1:6

London LLB course CLRI chapter 1-7
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Terms in this set (...)

Sources of Law
Cases, Statutes, Transnational Law
What comprises European Legislation
Treaty articles, regulations, directives and decisions
obiter dicta
remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. Generally, obiter dicta is simply dicta
Ratio decidendi
legal rule derived from, and consistent with, those parts of legal reasoning within a judgement on which the outcome of the case depends. binding on courts of lower and later jurisdiction—through the doctrine of stare decisis
stare decisis
is a legal principle by which judges are obliged to respect the precedents established by prior decisions.
1. courts normally follow their own decisions
2. courts follow decisions of courts above them
3. courts attach persuasive value to decisions of major common law courts outside their jurisdiction.
What factors influence judicial interpretation and precedent.
social, political, and economic context, culture, cultures of legal behavior
balance with :regularity in decision-making required each court, respect in place in hierarchy of court Judges could not trespass on the province of Parliamentary legislation, as constitutional doctrines stressed the legal and political sovereignty of Parliament
Key conclusion of London Tramways v London City Council (1898)
THL bound by its own decisions. Cannot reconsidered because it is 'not an ordinary case'. Lord Halsbury rules that justice is of little consequence in comparison with the need for finality in litigation. Hierarchy of courts must be respected.
Practice Statement 1966
before HL is bound.
Law fulfils a social function, justice is important. there is a social interest in settled general principles of law. should override sparingly, and with guidelines: 'the danger of disturbing the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.'
describe tradeoff between flexibility and consistency of law.
The law would be illegitimate if it simply asserted the need for general rules, and ignored the fact that justice required general rules to be changed. However, the law would also become illegitimate if it simply treated each case as exceptional and failed to develop general rules
conclusion of Miliangos v George Frank [1975] with respect to precedent
Lord Wilberforce argues that because the law in this area is judge-made, it is legitimate to alter it provided that 'on principle and in reason, it appears right to do so'. The sterling principle for the award of damages had become anachronistic. The law of damages has to keep pace with modern developments.
conclusion with respect to precedent of Shivpuri and Howe. In R v Shivpuri [1986] 2 WLR 988.,
the House of Lords over-ruled itself (Anderton v Ryan)
notion of objective innocence is cannot be applied, "intent" in criminal law is critical, the criminal law must approach the attempted offence from the viewpoint of the actor's criminal intention. It would be wrong to argue that 'objectively' the act is innocent because the drugs did not exist. Acts cannot be considered 'independently' of the state of mind of the actor†.
R v Howe [1987] 2 WLR 417
House of Lords over-ruled itself Lynch (DPP for Northern Ireland v Lynch). duress had never been available for murder.'judicial legislation [had] proved to be an excessive. The improvident use of judicial legislation in Lynch was also indicated by Parliament's refusal to legislate on the issue. the overriding objects of the criminal law' to set 'standards of conduct' that are clear in specifying how people are to 'avoid criminal responsibility' (ibid.). This means that the duress defence must not blur the offence of murder
What, then, can Howe and Shivpuri tell us about the practice of precedent within criminal law?
-need compelling arguments for change
-serious error in the past
-circumstances of case mean that it is practical to overrule earlier decision
per incuriam
refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court.
Young v Bristol Aeroplane Co what are the exceptions for court of appeal not following its own decision
(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
Schorsch Meier v Henin [1975] QB 416., at 425.)
Lord Denning justified this principle by arguing that it would be wrong to abrogate substantive rights by reference to procedural concerns. When reasons no longer exist, we are at liberty to discard the rule. rule came from 1961 HL United Railways of Havana in which awards were paid in sterling.
Miliangos v Frank 1976
Court of appeal follows Schorsch Meier
HL then agrees with decsision but criticizes Denning for going against HL Havana 1961. It is the job of HL.
McLoughlin Appellant v O'Brian 1983 , what does Scarman report s the role of the judge
The real risk to the common law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by a conservative judicial approach. If that should happen, and since the 1966 practice direction of the House it has become less likely, there would be a danger of the law becoming irrelevant to the consideration. However principles. In those cases where the formation of principle involves too great an intrusion into the field of policy, the judge must defer to Parliament. the flexibility of the common law is an element of what makes it just.
Regina v R [1991], in house of lords, what conclusion? contrast with R v Clegg
literal interpretation of Sexual Offences (Amendment) Act 1976=> husband cannot rape wife. It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment.
Example where law was "changed" .
R v Clegg 1995
example of House of Lords refusal to change law, must be done by parliament. reduction of murder to manslaughter.
Parliament had passed the 1967 Act which did not create a defence that related to the excessive use of force. It would be role of parliament to change or add this. Lloyd argues that in distinction to Reg v R [1992] 1 AC 599, where the House of Lords did change the common law without waiting for Parliament to legislate, the present issue is indeed one for the legislature
doli incapax
a conclusive presumption is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary. e.g. min age of child to be criminal.
C v DPP [1995], HoL and Parliament
refuses to go against doli incapax The House of Lords refused to abolish the rule, arguing that although it was not consistently applied, it was necessary for Parliament to legislate
R v Kearley [1992] 2 AC 228, where the House of Lords refused to alter the hearsay rule. what guidelines are there for when judicial legislation is justified
'(1) If the solution is doubtful, the judges should beware of imposing their own remedy.
(2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched.
(3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems.
(4) Fundamental legal doctrines should not be lightly set aside.
(5) Judges should not make a change unless they can achieve finality and certainty
Airedale NHS v Bland [1993] how does it compare with principles from Kearly
Precisely because there was no consensus in society about the correct values that should inform this area of medical ethics, it was not fitting for the judges to 'develop new, all embracing, principles of law' that only reflect 'the individual judges' moral stance.' A judge thus had to work with the 'existing law'. Although this is in itself 'unsatisfactory' . It was up to Parliament, and the 'democratic process' to give voice to principles that reflected a consensus. it was not fitting for the judges to 'develop new, all embracing, principles of law'
Kay and others v Lambeth London Borough Council 2006, ECHR and Court of appeal overruling House of Lords, what is condition?
Lord Bingham offered some guidelines that would help the court to consider when it could depart from the House of Lords, and follow a case of the ECHR.
1.The Strasbourg case would have to have been decided after the domestic case;
2. the case would have to put forward a clear interpretation of both Convention law and UK law;
3. there is an incompatibility between domestic and Convention law and the domestic law was not based on an Act of Parliament.
compare Davis v Johnson and Kay v Lambeth
Kay can thus be read as the re-assertion of the conventional doctrine of precedent in the wake of the Human Rights Act, in the same way that the House of Lords in Davis reasserted conventional doctrine against Lord Denning's creative heresies. However, the way forward proposed by Lord Bingham is also consistent with the wider Strasbourg jurisprudence, which allows a 'margin of appreciation' to national courts in interpreting Convention Rights. This places the primary responsibility on domestic courts as the correct forums for the determination of how European Human Rights law is to apply in a domestic context.
How do Lord Bingham's guidelines relate to the Court of Appeals decision in D v East Berkshire Community NHS Trust [2004] QB 558?
X (Minors) v Bedfordshire County Council [1995] 2 AC 633, was inconsistent with the HRA.
1. the case had made no reference to the Convention
2. plaintiffs in the case later were successful in pleading a breach of Article 3 in the ECHR
2 types of law which must be considered when evaluating a case for a client
procedural,substantive
regulations
directly binding on member states override national law
directives
binding as to result, must be implemented by the states by a given date. e.g. Act of Parliament is passed to implement
decisions
binding only on member states or individuals to whom addressed, narrow application, type of legislation.
"Cause of Action"
When suing must demonstrates that facts lead to something which the law recognizes as giving rise to liability.
prima facie
at first sight
examples of obiter dictum
1. hypothetical comments
2. what judge would have done if o stare decisis
3. minority judgements
4.general comments on related law
7 seven things can happen to a case
1. may be followed strictly
2. approve or disapprove
3. overrule (makes previous case irrelevant (Pepper, R v R on martial rape,
4. overturn or reverse= higher court reaches a different decision from lower.
5. distinguish
6.per incuriam
7. Act of parliament changes law e.g. EMployment act 2008 overturns Polkey (which had overturned previous case law)
8. previous case has no clear ratio.
targets of statute draftsman work
legal effectiveness, procedural legitimacy, timeliness, certainty, understandable,acceptable, brevity, debatable, legal compatibility (existing law, wording, how words are used, how is existing law amended)
4 rule of interpretation
literal
golden: words in context when literal=>absurd
purposive
mischief : what mischief was draftsman trying to remedy
Stock v Jones (1978) , when according to Lord Simon can we depart from literal
clear anomaly
Parliament could not have envisaged anomaly, would not have accepted
can be corrected without detriment to legislative intent
language of statue allows for modification
Example of Golden rule
R v Allen (1872) whosoverbeing married should marry another. Allen married Harriet (2nd marriage) but she is a close relative. marry taken to mean going through ceremony.
HEydon's case (1584) exmple of mischief rule
consider
common law before Act
defect or mischief for which common law did not provide
intent of Parliament
true reason for remedy
Expressio Unius est Exclusio Alterius
expression of one thing is the inclusion of the other. (if not in the list of included words, it is rejected)
Eisudem Generis
interpret categories consistently with the type expressed in the context.
Noscitur a Sociis
wider application than Eisudem Generis, used when there is no general words at the end of the list. Ask question what type of ??? is included in the words x,y,z
Ignorantia Leges non Excusat
Ignorance of the law is no excuse
In pari materia
concerning the same matter
Barras Principle (Barras v Aberdeen Steam Trawling and Fishing Co. Ltd [1933]
when judicial interpretation is given to a doubtful word, subsequent statues using the smae word must use previous interpretation of the word.
What is the general structure of a judgement.
procedural history
presentation of questions to be answered
rules of law, ratios of earlier cases
application of law to facts
holding of decision
practical direction to give effect to decision
What are techniques for following a decision
emphasising facutal similarities
arguing dissimilarities are irrelevant
stating factual predicate of precedence at a greater generality
characterising previous cases in terms of principles or policy judgements
Techniques for distinguishing
emphasise differences
dismissing similarities as irrelevant
characterising precedent in narrow terms
earlier case was bad law, needs to be overruled
point out that the case was overruled by higher court or statute
main conclusion of Donoghue v Stevenson 1932
expands duty of care to allow claim to succeed beyond contractual limitations
How does Hedley Byrne v Heller 1964 relate to Donoghue 1932
HL formulates duty of care in relation to advice , requirement to prevent foreseeable economic loss to plaintiff. Development of principle of care.
refines Donoghue:
1. liability for things spoken as well as done
2. liability not only for physical harm, but also economic loss.
what is role of hierarchy of courts
1. first instance deals mostly with facts, less time for deliberation, moslty procedure and administration.
2. Judges in appellate courts have advantage of first written judgement, upon which they can improve.
3. Lawyers also benefit from results of previous hearing.
4. Appellate judges are very competent lawyers.
5. there are several judges so there can be discussion and exchange on points
Goodhart and Stone's methods for determining ratio
Goodhart: take into account material facts and judge's decision, also facts which were excluded.

Stone: rationes depend on levels of analysis.
How do process and principles interact in the law
1. courts decide questions according to judicially developed propositions.
2. Once proposition is establied it will be followed.
Courts normally follow there own decisions
follow decisions of courts above them
attach persuasive value to courts outside jurisdiction.
Leeds CC v Price -;Kay v London Borough of Lambeth
what are issue
To what extent, if at all, does Article 8 of the European Convention of Human Rights (respect for the home) assist a person who has no legal or equitable right to remain in occupation under domestic law?

Effect of the convention on English principles of precedent? decisions of ECHR must only be taken into account, but not as precedent.

Lord Bingham that the European Court accorded a generous margin of appreciation to the national authorities, attaching much importance to the facts of the case. Thus, it was for the courts to decide how in the first instance the principles expounded in Strasbourg should be applied in the special context of national legislation, practice and social and other considerations. To those decisions the ordinary rules of precedent should apply
examples of cases in CA which go against HL
Schorsch Meier (sterling principle was outdated)
Miliangos v George Frank follows decision of Schorsch Meier which bypasses HL
confirmed in appeal to HL
Davis v Johnson 1979
Lord Denning tries to use Practice Statement for CA i.e. depart from stare decisis when justice demanded it.
His attempt fails, CA is bound.
R v Kansal [2001] and R v Lambert [2001]
house criticises its own decision on application of HRA to Lambert on matters arising before act came into force, however follows decision (retrospective and prospective overruling).
retropsective v propsepective, +/-
retrospective: law is the same regardless of date, however implies that people who acted at the time of the law may be found in breach later, which is unfair.

Prospective. Law applies to the future. Problem is that two different laws may apply to a contract, the only element distinguishing one from the other is the date.
from which contexts to persuasice precedents arise
decisions of lower courts
decisions od high Court at first instance (trial stage) are persuasive for later high court cases
decsisionf of Judicial Committee of Privy Council
Scottish+North Ireland Courts
Common law world courts
relation of Anderton v Ryan 1985 and Shivpuri 2987
Anderton had received criticism. Shivpuri overturned its own decision because it felt previous decision was wrong.
R v Kansal [2001] and Lambert [2001]
example of influence of HRA, HL criticizes their own decision in Lamber, but does not overrule.
cessante ratione legis; cessat ipsa lex
reason for rule ceases the law itself no longer itself
JCPC
The Judicial Committee of The Privy Council (JCPC) is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee. cannot create binding precedent, but highly persuasive. Judges are from supreme court.
Lambert [2001] circumstances and conclusions
Lambert neither believed, nor suspected, nor had reason to suspect that the bag contained cocaine, or any controlled drug (Misuse of drugs act 19721 however legal burden on the defendant, which is incompatible with HRA presumption of innocence). CA dismissed appeal, but asks important questions, Did it violate right to fair trial according to HRA, and is HRA retrospective on appeal. idea is that case before CA is after HRA, however initial hearing+events are before. HL confirms that not retrospective, one problem is that a law which was correct at the time could be possibly overturned later.
overturn v overrule
overturn changes precedent. overrule changes decision.
Lambert [2001] When can retrospectivity be used using precedent from R v Secretary of State for the Environment, Transport and the Regions, ex parte Challenger [2000]
Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section. Can be used ONLY for proceeding brought by , not against the court itself.
Kansal 2001 facts and conclusion
Mr Kansal had been made the subject of a bankruptcy order following the failure of his company. He subsequently deceived a building society into advancing substantial sums of money to him by making a number of false representations as to his income and status. He was convicted in February 1992 of two counts of obtaining property by deception, contrary to section 15(1) of the Theft Act 1968 and two counts under the sections 354(2) and (3) of the Insolvency Act 1986, namely, removing and failing to account for property.

the Crown was permitted, in accordance with section 433 of the 1986 Act, to rely on the defendant's answers provided under compulsion. Appeal heard after HRA referred to by Criminal Cases Review Commission, conviction was unsafe with respect to HRA, CA reluctantly agrees using R v DPP [2000] precedent, once CCRC reviews it should be accepted
Kansal 2001 HL conclusion
approved Lambert, holding it to be indistinguishable from Kansal, even though this time prosecutor's acts instead of judicial. Decision to follow Lambert, in that HRA is not retrospective.
devolution
is the statutory granting of powers from the central government of a sovereign state to government
duress
the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests
r v r 1992 HL
The defendant married his wife in 1984. wife left the matrimonial home in 1989 and returned to live with her parents, informing the defendant of her intention to petition for divorce. The defendant also communicated to the wife his intention to "see about a divorce." While the wife was staying at her parents' house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her. charged on indictment with rape and assault occasioning actual bodily harm. The judge rejected his submission that by virtue of section 1(1) of the Sexual Offences (Amendment) Act 1976 the offence of rape was one which was not known to the law where the defendant was the husband of the alleged victim. He thereupon pleaded guilty to attempted rape and assault occasioning actual bodily harm and was convicted. On the defendant's appeal against his conviction of attempted rape, the Court of Appeal (Criminal Division) dismissed the appeal.
Appeal:
Held, dismissing the appeal, no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband; and that, therefore, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse; that section 1(1) of the Sexual Offences (Amendment) Act 1976 did not give statutory recognition to and perpetuate the former rule;
R v Clegg [1995] 1 AC 482 House of Lords
he defendant fired three bullets as the car was approaching and a final bullet as the car was driving away. The final shot proved to be fatal, hitting a passenger who was in the back seat of the car. The car had been stolen and contained young 'joy riders' not terrorists. The defendant was convicted of murder and appealed to the Court of Appeal.

In dismissing the appeal the House of Lords declined the opportunity to extend the defence available under s.3 Criminal Law Act 1967 to allow those who use excessive force which results in death to have manslaughter convictions substituted for a murder conviction. Whilst their Lordships were persuaded with the merits of such a change, any change must come from Parliament.
Which online index would you search to find what a journal or case report abbreviation stands for?
The Cardiff Index to Legal Abbreviations.
On which freely available website will you find British and Irish case law and legislation, European Union case law, Law Commission reports, and other law-related British and Irish material?
On which freely available website will you find British and Irish
case law and legislation, European Union case law, Law
Commission reports, and other law-related British and Irish
material?
What do the abbreviations W.L.R. and All E.R. stand for?
Weekly Law Reports, All England Law Reports (½ mark for
each).
When searching for a Criminal case with a common surname (such
as Smith) what is often added to the party name to help identify
the case?
The forename(s) of the party, e.g. Regina v Smith (Morgan James).
Why are the "official" Law Reports series (A.C., Q.B. or K.B., Ch. and Fam.) the most authoritative reports?
Because their reports go to the judges and counsel concerned for
approval prior to publication (mentioned in case law document).
Law and Society: Martin Paddington. What are the different functions of law that he suggests?
macro fns general role played by law
micro fns
more specific issues
orders of law
public,political, social, economic, international and moral
law shapes order
characteristics of common law include:
It applies to all legal persons including the state (traditionally there is no division between public and private law).
The adoption of an inductive form of legal reasoning whereby legal principles are derived from the texts of many single judgments.
A litigation system in which the trial is the distinct and separate climax to the litigation process.
Courtroom practice which may be subject to rigid and technical rules.

The fact that the parties to the dispute essentially control proceedings and that there is an emphasis on the presentation of oral argument by counsel. The role of the judiciary is more reactive than proactive. Given the parties' opportunity and responsibility for mounting their own case, the system is more participatory.

The fact that the judiciary possesses an inherent power to adjudicate separately from the executive or political process. While the judiciary may be paid by the state, they exercise a separate power free from political interference.

The fact that the expense and effort of determination of disputes through litigation falls largely on the parties.
Characteristics of civil law systems
A concern to determine legal disputes according to pre-determined legal principles established to maintain social order.

The source of law being found in authoritative statements of basic legal principles - for example, the Civil and Criminal Codes - issued by the state and propounded upon by legal scholars.

The separation of public law (concerning relations between the individual and the state) and private law (between individuals).

The adoption of a deductive form of legal reasoning whereby pre-existing general statements of legal principle are applied to the specific circumstances of individual cases.

In litigation, the fact that no rigid separation exists between the stages of the trial and pre-trial in court cases. Legal proceedings are viewed as a continuous series of meetings, hearings and written communications, during which evidence is introduced, witnesses heard and motions made.

Rules relating to courtroom practice which are intended to be minimal and uncomplicated.

A less conspicuous role played by lawyers, with an emphasis on written submissions rather than oral argument. The judiciary in theory and practice play a more organisational and inquisitive role. The greater directorial role of the judiciary allows less room for the parties to direct their own case. In this sense the system is more hierarchical than participatory.

The fact that, as officers of the state, the judiciary possesses no separate and inherent power to adjudicate.

The fact that a greater proportion of the effort and expense of dispute determination through litigation falls on the state.
Cownie and Bradney: Courts
places concerned with the settling of legal disputes but acknowledge instantly that that definition is insufficient. Most of the disputes are not settled in court even if the courts serve as a place of reference; much of the courts' importance may well then be symbolic.
most disuptes outside of courts ADR. BUT
'[The courts] are central when we ask some questions [about legal systems]; inconsequential when we ask others; 'most visible' when we look for some things; impossible to see when we look for others...That which is most visible, like the tip of the iceberg, is not always that which is most important.'
Unger: 3 conceptions of law
customary law
regulatory or bureaucratic law
legal order proper.
legal order
It is crucial that this kind of law is seen as autonomous of political whim or of the wishes of the social and economic élites, and is secured by specialised institutions (courts) whose main task is adjudication. Moreover, these courts create particular methodologies for justifying and disciplining their discretion.
Gulliver, negotiation vs adjudication: negotaition
the result, the settlement, is in effect some mutually acceptable tolerable resolution of the matter in dispute, based on the assessed or demonstrated strengths of the parties.
Gulliver negotiation vs adjudication: adjudication
requires third party to make binding decision
such a decision is in some way coercive in that the adjudicator (judge or like) has not only the right and the obligation to reach and enunciate a decision but also power to enforce it.

mediation vs adjudication
judgement of one's peer
crucial and allimportant in enforcing customary norms. Powerful inducements to conform may be socialisation, gossip, public criticism, 'shaming', withholding of recognition, ostracism and the ultimate sanction, expulsion or exiling. But when someone causes damage, retaliatory self-help may be relied upon.
small society
constraints to prevent the dispute escalating
moral obligation, keeping close ties
cause one another irreparable harm would weaken their position against outsiders.
Second, other people likely to be interested in the dispute also belong to this political group or network.
'Modern' disputes appear to be different in crucial ways:
the parties are not likely to be deeply embedded in relationship ties (if they are
they may not go to formal dispute handling systems)

the processing of disputes has become formalised and groups of 'others' are
involved as 'professionals'.
modern 'criminal trial'
questions of the social context and social justice are not entered into; rather, the court is concerned about whether the strict legal categories (for example, specific intent) are satisfied.

he legal mode of assessing situations of conflict may be contrasted with their full moral evaluation... It is characteristic of the legal mode of social control that rules are used to arrive at simple, dichotomous moral decisions - 'yes' or 'no' decisions that in other contexts would seem intolerably oversimplified morally. The legal process does not ask: What are all the rights and wrongs of this situation - on both sides? Rather, it asks: Is John Doe guilty as charged? John Doe may be utterly depraved - may be shown to have treated Richard Doe abominably - but if he cannot be shown to have violated the rule as charged, he (as far as the legal process is concerned) goes as free as if he were a saint. (Fallers, 1969, pp.12-13) The legal process abstrac

The legal process abstracts various factors out of the complexity of the social situation. By contrast, when the dispute was between closely linked persons, who may be close kin, then the third parties may be concerned to prevent the breakingup of relationships and to ensure that it is possible for the parties to live together in the future. If that is an important concern, then the 'court' would try to effect a compromise.
courts and the common law: origins
dentity was not created by imposition. This is understandable for, after all, when William I assumed the throne after the Norman Conquest in 1066, there was very little 'unity' to England and transport and communication were difficult affairs. However, the organisational framework for the common law arose out of a progressive centralisation of certain administrative functions in the wake of the Conquest. Its legal method arose from a process of trying to justify and rationalise particular outcomes
in particular the granting or refusal of a remedy by specific courts and the ease with which a subject could gain access to a particular court.
Henry II
early lawyer-king ,used the vaguely defined jurisdiction of the Curia Regis to establish and develop Royal Courts, which gradually centralised the 'administration of justice' and in so doing reduced the role of alternative decision-making bodies.
Curia Regis: king's court Henry II
the king could hold a Court as feudal lord for his tenants as the ultimate landholder
AND could exercise a residuary justice
authorities of king
-responsible for maintaining order, -secondly, all (free) men were to look to him for justice, if it was denied elsewhere.
Henry II uses power to give access to speedy and efficient justice
writ : center of system of justice.
command from the king, which would be enforced against the offender by the punishment of imprisonment. This principle of contempt of the king's writ may be the most important of all the contributory causes to the centralisation of justice. For any complaint the subject might purchase a writ that brought the matter before the king's Justices.
writ making a complaint
subject might purchase a writ that brought the matter before the king's Justices. The strong arm of the king's Sheriff would enforce the decision of the Court. In all matters of sufficient gravity, to warrant the time and expenses the subject would go to the king's Chancery for his writ.
centralisation of royal justice
6 principles rocess whereby the
Royal Courts usurped or ousted the jurisdiction of the local Courts. Pollock and Maitland
...