The Development of Common Law and Equity
I have been asked to write a report on the development of common law
and equity. Common law refers to the law created by judges that was
historically significant but has been since superseded by parliament.
It is in parallel with equity which refers to the source of law
created by the Lord Chancellor which was designed to supplement the
common law and allow people the opportunity to avoid the inherent
problems. Equity is ‘the gloss on the common law’. The following
report will go through step by step on how common law and equity have
developed between the years 1066 to our present day.
2.0 Development of Common Law
In very early times- before King Alfred, there was no system of
justice which applied to the whole of the country. The population was
not ruled by a single monarch, transport and communications were
available to very few and no law books were available, however, the
population was very small at this time, therefore meaning it was not
required as much as nowadays.
In 1066, William I made changes to the old system, introducing the
Curia Regis and appointing judges-common law was first introduced
during this time. The kings representatives were sent throughout the
land to check local administration and hear local cases. Cases were
interpreted and customised to suit the whole country. After
introducing the Curia Regis William ordered all his disputes to be
heard in a court situated in Westminster using only his version of the
law. This caused a problem because it meant that there was only one
court situated in the South of England. This caused William to send
his representatives to their local areas to hear distributes. These
were known as itinerant justices but 90 years later Henry II renamed
them circuit judges.
The common law however, was not written down immediately, however,
after a period of time it was written down and later a further
development was made and the ruling made by kings, were also written
down. This was a huge development for Common Law in the legal system
as it gave some sort of guidance with cases.
3.0 Problems with common law
3.1 Problem 1
The first problem that occurred was the writ system; before a case
could begin the complainant had to obtain a writ. Originally, writs
were reserved for special cases because most cases were heard in the
Eyre. However, the trend became to create new writs so that royal
courts could hear more cases. In 1189 there were about 40 writs, by
the time of Edward (1272-1307) there were more than 400. In the 1300’s
the number of writs became fixed and if a writ didn't fit the facts of
a particular case then it would be thrown out of court. The maxim “no
writ, no remedy.” The common law was based on the...