Brief_History_of_Common_Law.ppt

1、Brief History of Common Law,Common law Statute Law European Union Law Civil law Criminal law ,Laws in the UK,Sources of England & Welsh Law,Two branches of law,ThecommonlawishistoricallythecommongenerallawwithsupremacyoverlocallawwhichwasdecreedbytheitinerantjudgesoftheEnglishroyalcourt.普通法在历史上是普通综合

2、法，由英国皇家法院的巡回法官颁布的普通综合法地位高于地方法。,Common Law,A law is decided by judges, their decisions in cases being arrived at after considering the customs and practices of the people involved. the Law which exists and applies to a group on the basis of customs and legal precedents developed over hundreds of year

3、s in Britain. This kind of law has evolved long before Parliament became the main law-making body.,1）Roman rule and Anglo-Saxon（pre-Conquest） 2）Norman conquest（William the First） 3） Henry (1100-1135) 4） Henry （11541189） 5) Henry 6）The writ system 7）Key features of the common law system,1）Roman rule

4、and Anglo-Saxon（pre-Conquest）,For a long time, one of the Celtic people inhabited the ancient Britain. Then, Roman army came and finally conquered England in A.D. 43. For the next three and half centuries Britain was under Roman rule. But Romans did little to spread their culture there. With the col

5、lapse of the great Roman Empire, its legions were withdrawn from Britain. Since the mid-5th century AD, then came the greatest series of Anglo-Saxon invasions.,Law Anglo-Saxon law was based on local custom. And because England had been subject to so many invasions in the six centuries since the depa

6、rture of the Romans, there were in fact several different sets of customs in different parts of the kingdom. there was not a set of rules which governed society as a whole. Legal structure The basic units of social and political organization were the counties and “hundred, the hundreds were subdivis

7、ions of counties. The hundreds courts were essentially meetings of important hundred residents. In addition to the hundreds courts ,feudal justice was also administered in the county courts held by the overlords of counties.,2）Norman conquest（William the First）,In January 1066, King Edward died. In

8、October, William landed in England, The Norman conquest eventually resulted in the creation and development of the common law. The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England.,Law In fact, the change that started i

9、n 1066 was neither sudden nor dramatic. William found awaiting him a fairly complicated system of dispute resolution. Indeed, one of his first acts was to declare that the old system of Anglo-Saxon laws would continue in force. Legal structure From the earliest times after the Conquest, the kings ha

10、d gathered around them a body of trusted advisers. This body was known as the Curia Regis(御前会议) - the kings court. But court was used in its older sense of referring to the kings personal retinue, rather than in the modern judicial sense. The Kings Court functioned as a general advisory body, provid

11、ing the king with counsel and advice before he made decisions.,In addition to the Kings Court, the kings began to appoint officials called justiciars.（首席政法官） The justifiers acted as a royal representative in the kings absence from England, The appointment of these royal delegates - the Curia Regis a

12、nd the justiciars - marked an important step in the transformation of the common law from a personal instrument of the king to a real institution of government.,3) Henry (1100-1135),As the Household became more and more busy, the Kings Court began to sub-divide into more specialized bodies. There wa

13、s a body of specialized financial advisers, who came to hear disputes involving the royal revenue. Because the table at which this body sat was covered with a chequer-patterned cloth, it came to be known as the Court of Exchequer. It is for this reason that the modern-day British Treasurer is known

14、as the Chancellor of the Exchequer. Circuit Court,4) Henry （11541189）,Over time, the Kings Court gave birth to a body of professional judges whose job was to hear disputes between common people. This body became known as the Court of Common Pleas. Beyond the Common Pleas and the Exchequer, there rem

15、ained a group of advisers who continued to travel with the king. It was known as Kings Bench. Unlike the Common Pleas, the Kings Bench had a monopoly on those disputes involving the king himself. Kings Bench later developed into a criminal court because the criminals broke the Kings peace and order.

16、,The common law derives from the reign of Henry II. The “common law” was the law that emerged as “common” throughout the realm, as the kings judges followed each others decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries

17、, as the collective judicial decisions that were based in tradition, custom and precedent.,England, Wales, Northern Ireland use the common law system, while Scotland, which is based on a different legal tradition, uses a hybrid (a composite of mixed origin ) system combining elements form the common

18、 law and the civil law system.,5) Henry ,By the Henry ,These three dispute-resolving institutions - the Common Pleas, the Exchequer and the Kings Bench - are together known as the common law courts, and their decisions became common law. the Court of Exchequer the Court of Common Pleas the Court of

19、Kings Bench,6）The writ system,writs were central to the systematizing and development of the common law. The formal division of the Kings Court into the three common law courts and the Council was an attempt to cope with the demands of centralized government. But it was not enough. In response, atte

20、mpts were made to regularize and formalize its procedures. The chief means was through what is known as the writ system. .,The writs were what we would think of today as standard forms, and for each different type of complaint, there was a different template. Writs were purchased by plaintiffs from

21、a royal official called the Chancellor, and it was through the writ that the legal process was begun,Key features of the common law system,From the brief introduction to the common law history, some conclusions can be safely drawn about this unique legal system as follows: Common law system originat

22、ed from Roman law and Anglo-Saxon law. There is strong French influence in the legal language. Juries make decisions (verdicts) of fact. The jury is an ancient characteristic of common law systems. It has Saxon roots. Property law was the first area to develop in the common law land law, personal pr

23、operty law and succession.,Key features of the common law system,Documents called writs were central to the systematizing and development of the common law. Judicial decisions are the core of the common law, not statutes or legislation. Statute override judge-made law, if they clash. Legal principle

24、s from previous cases are applied to substantially similar facts in later cases. Precedents developed. The core of the precedents is called the ratio decidendi. This core binds lower courts in court hierarchy. This bindingness principle is called stare dicisis(遵循先例) meaning to abide by decided cases

25、). Monarchs and governments must rule in accordance with the law and not under arbitrary power. The rule of law prevails.,普通法,衡平法,普通法专指英国在11世纪后由法官通过判决形式逐渐形成的适用于全英格兰的一种判例法。而衡平法是指英国在14世纪后对普通法的修正和补充而出现的一种判例法。,The Main Characteristics of Common Law System,When it comes to Common law system, the doctrine

26、 of the supremacy of the law cannot be ignored. It means that all citizens, including the highest-ranking officials of the government , are subject to the same set of laws, and the exercise of government power is limited by those laws. The doctrine of “stare decisis” is the distinctive feature of co

27、mmon law system . Under the doctrine, common-law judges are obliged to adhere to previously decided cases, or precedents . A precedent is considered to be “binding” on a court only if it was decided by that same court or by an appellate court of higher rank in the same jurisdiction , other precedentsfrom lower courts or from other jurisdictions are said to be merely “persuasive”.,Another significant characteristic is the adversary system . U