The emergence of standard common law

Prior to the rule of King Alfred the Great (871-99), there was no single justice system, no single monarch and no single set of laws. With no transport, communication or education as we know it today citizens lived in a feudal society. Despite these restrictions, the Kingdom of England was constructed with its counties headed by sheriffs. It was not to be long before the standard of common law was to emerge. Upon the death of William of Normandy's distant cousin, Edward the Confessor, an English political institution called The Witenagemot, authorised Harold Godwinson's accession to the throne on 5th January 1066.

He then became King Harold of England. William also claimed the throne of England, declaring that Edward had named himself as Heir. After they both assembled Army's, the crucial battle of Senlac took place, which later became known as The Battle of Hastings. It was a closely fought battle and it was this struggle that led to the Anglo-Saxon forces fleeing, leaving William victorious. This is what is now known as The Norman Conquest. The first central government was created, King William would sit in his court, the curia regis, his Kings council.

The King would listen to peoples grievances, he sent Itinerant Justices throughout the land to make him accessible to all. This also enabled them to spread the word on the chosen 'common law', as previously all counties had different laws and beliefs or 'local law'. As local laws turned into national laws, common law evolved as being common to all. In time the courts were dealing with more claims and cases, a system that became corrupt. Compurgation, an acquittal from a charge or accusation, which was obtained by statements of innocence given by witnesses' under oath, could be obtained simply.

Usually, making payment to peasants would enable you to gain your innocence; therefore people were not able to get justice from this system. This was where the role of the Lord Chancellor evolved; with the development of equity, law was made fairer. He was known as the 'keeper of the Kings conscience' and was able to promote fairness. As this role became such an immense task, the Lord Chancellor was given his own court, The Chancery. Once people realised that this system was fair and just, records were made, this became Case Law. Under Henry the ??

in the 12th century, the courts system became more established. Judges decisions were being recorded in reports and the doctrine of Precedent developed. Henry died on 6 July 1189… 1189 is a date of some legal interest, for it is the origin of the phrase 'from time immemorial'… Parliament decided that 'legal memory' should run from the date of Henry's death, and the courts would take no account of any legal transactions which had taken place before it. With the passage of time this was also taken to mean that the courts would not recognise any laws made before 1189.

(Rivlin, P23A) In the late 12th century the curia regis split into two main sections. The busier of the two, which dealt with the civil cases, was The Bench, later known as the Court of Common Pleas. The second section was The Kings Bench, or 'coram rege' which dealt with criminal and civil cases. The Itinerant Justices held royal courts in the counties every few years, these were called eyres, and this practice continued into the 14th century. Commissions of various kinds were issued for the hearing of local criminal and civil cases, which were later known as 'assizes' or sittings.

Other commissions appointed prominent local men who became known as Justices of the Peace who's hearings would be held on a quarterly basis. Case Law gives reference to the foundation and processing of law in the course of judicial decisions. It has highlighted the importance of legislation and its presentation in society today. Although Case Law can be overturned by legislation, the United Kingdom is a common law system and these principles and practices are of great significance. 'Stare decisis' is used to describe the doctrine of precedent.

It refers to the rules on which courts bind other courts in the legal system. To translate, it means to stand by what has been decided. It is said that the phrase should be 'stare rationibus decidendis' as it is the ratio decidendi not the decision that binds. When a court is faced with a set of facts, it may be bound to decide the case by applying principles of law decided in a previous case with a similar set of facts.

The previous case is said to be a 'binding authority' or precedent for the legal principle involved. (Rivlin,P125) To give an example of Precedent, in Donoghue vs Stevenson (1932) the judge laid down a basic general test, of a duty of care in negligence. A rule or principle may be extended as the need arises. The judge is free to choose the exact rules to which they are to be bound. The principle that was used here has been used frequently as a starting point in many cases since. It is a broad ratio for consumers. Some advantages of Precedents/Case Law are that it gives you consistency. It can be more efficient and gives certainty. Although with social changes, this can lead to a precedent becoming rigid and unconstitutional.

There are ways of avoiding precedent. This can happen by overruling or distinguishing. If a precedent is overruled, it is being set aside. A new one would be put in its place. When facts cannot fit a ratio, it will be avoided by the acknowledgement of a precedent but are distinguishing it on the facts. Precedent is then avoided without a change in the law. An Obiter comment or 'Obiter Dictum' is a decision that you can look at but won't be bound by. It is a 'by the way' comment. In the case of Carlill v. Carbolic Smoke Ball Co Ltd (1892)