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History And Application Of Common Law

1873 words - 7 pages

1a) Common Law, also widely known as Case Law, derived from the old English common law, is largely based on precedents, where judicial decisions were already previously made in similar cases where it is used as reference bases or sources of law. Also, common law is not codified, which generally means there is no comprehensive compilation of legal rules and not written in statues [The common law and civil law traditions, 2010:1].

It is during the Middle Ages, after the Norman Conquest in 1066, where Common Law is believed to be formed from the changing and centralizing powers of the king, where “the medieval kings began to consolidate power and established new constitutions of royal authorities and justice” and in the seventeenth century when the common law triumph over the other laws, when Parliament established check on the power of the English king and claimed the right to define the common law an declare other laws subsidiary to it. [The common Law and Civil Law Traditions, 2010: 3-4] . Two obvious examples would be the Marriage Law, a traditional marriage where couples need not to obtain a marriage license, or perform a formal wedding [Cathy Meyer, 2013:1] or when a child lost both parents, is adopted by another couple, with no legal papers.

Common law involves two opposing parties, which are juries, ordinary people with no background legal training, whom decides on the facts of the case, and the judge who determines the appropriate punishment, or sentence, based on the jury’s verdict [R.C. Van Caenegem, 1988:3-4]. Incase whereby according to [Marbury v. Madison, 1803] if “the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the rights, authority and duty to make law by creating precedent, thus this will bind future courts.” Precedent, previously, means that the presiding judges determine the precedent to be applied on each new case. These precedents are maintained over time through records of the courts as well as historically documented in collections of case law known as yearbooks and reports. As a result, judges have an enormous role in shaping British law.

b) Court of equity, also known as the court of Chancery, (court of the king’s chancellor) which was developed two hundred years after the birth of common law was invented, functions to resolves the difficulty and dispute that common law failed to address [The common Law and Civil Law Traditions, 2010: 3-4]. Court of equity applied a set of principles and maxims of equity in accordance to natural law and Roman law, rather than applying common law that supplement strict rules of common law where their application would operate harshly to achieve a just outcome and fairness. Equity was put into consideration when a person cannot receive justice in common lawcourts, due to being poor as writs cost money, or his adversary was too powerful. Also, petition would plead “for the love or God” and as Chancellor became more superior,...

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