Clarification of Answer by
wonko-ga
on
21 May 2003 13:58 PDT
Hello again elusivewinger,
I am very sorry my first attempt to answer your question was not very
helpful. Your clarification was useful in directing my subsequent
research. I hope the following assists you.
Wonko
Inability of the courts to keep up with rapid social developments and
the rise of the mercantile class necessitated the development of
statute law. Over time, particularly during the Industrial
Revolution, statute law became the major source of law. The
inflexibility of the writ system, which was the foundation creating
the common law courts arising from the needs of the feudal system, to
address more modern concerns necessitated the development of statute
law.
http://www.human-rights.demon.co.uk/englishlaw.htm
English Law-Foundations
"Actions in the common law courts were initiated by writs obtained
from the Chancery (the office of the Chancellor and a skilled body of
clerks(4*). Originally used by the Sovereign to settle disputes
brought to his notice by subjects who had been, or considered
themselves to have been wronged, the writ soon developed from a royal
command ordering that an alleged wrong should be righted into a
direction to an official to hold and inquiry into a complaint or to a
defendant either to concede or to answer plaintiff's claim. During the
twelfth and early thirteenth centuries a great many writs were issued
in a wide variety of forms, and presently they began to shape the main
branches of common law and the procedure appropriate to those
branches. As time went on a semi-official register of writs appeared,
and this came to be regarded as an exhaustive catalogue of the causes
of action known to law.
The circumscription of the law within the framework of the writ system
(together with a temporary restriction on the office of the Chancellor
to create new writs) acted as a brake on the development of the common
law. After 1285 litigants were again able to obtain writs, but they
ceased to be able to rely upon redress, since the courts of common law
had established their right to declare that any cause or action that
was not contrary to the established legal rules was unknown to law."
"The earliest examples of enacted laws in England were the ordinances
of the Curia Regis (the King and his council), which, in the early
Norman period, was the governing body of the realm. Law-making by
Parliament did not begin until the thirteenth century; it was not
until the sixteenth century that legislative Acts took the form in
which they are cast today(8*) and until the late nineteenth century
the amount of legislation was comparatively small. The position began
to change after the passing of the Reform Act in 1832(9*) and since
the beginning of the twentieth century there has been a very great
increase both in the volume of legislation and in its scope. Nowadays
there is scarcely any aspect of life that is not, in some measure,
affected by it."
http://www.radford.edu/~junnever/law/commonlaw.htm
Class notes taken from Order, Law, and Crime by Raymond Michalowski
and The Politics of Jurisprudence by Roger Cotterrell
"By capturing a greater share of the wealth of England, the growing
mercantile class also captured a greater influence over the law of
England. A common law designed primarily to protect the rights of
feudal land ownership was wholly inadequate to the needs of a class
whose goal was the accumulation or profit through trade rather than
the protection of hereditary lands. What was needed were laws that
would protect capital and the rights to its accumulation, insure a
steady flow of profitable trade goods, and control the problems posed
by a growing class of mobile urbanized laborers and artisans, no
longer bound to the land, whose livelihoods were dependent upon the
vagaries of both national and international trade. By the middle of
the fifteenth century the English nobility, and even the crown, was
firmly in debt to the mercantile class, and laws that would meet the
needs of the powerful mercantile class began to emerge. As capital
became more central, it increasingly enjoyed state protection in the
form of criminal laws designed to punish those who interfered with
what had come to he acceptable -forms of capital accumulation."
http://www.infoplease.com/ce6/society/A0857484.html
"Early common law was somewhat inflexible; it would not adjudicate a
case that did not fall precisely under the purview of a particular
writ and had an unwieldy set of procedural rules. Except for a few
types of lawsuits in which the object was to recover real or personal
property, the only remedy provided was money damages; the body of
legal principles known as equity evolved partly to overcome these
deficiencies. Until comparatively recent times there was a sharp
division between common law (or legal jurisprudence) and equity (or
equitable jurisprudence). In 1848 the state of New York enacted a code
of civil procedure (drafted by David Dudley Field) that merged law and
equity into one jurisdiction. Thenceforth, actions at law and suits in
equity were to be administered in the same courts and under the same
procedure. The Field code reforms were adopted by most states of the
United States, by the federal government, and by the United Kingdom
(in the Judicature Act of 1873)."
http://www.infoplease.com/ce6/society/A0857483.html
"Judicial precedents derive their force from the doctrine of stare
decisis [Lat.,=stand by the decided matter], i.e., that the previous
decisions of the highest court in the jurisdiction are binding on all
other courts in the jurisdiction. Changing conditions, however, soon
make most decisions inapplicable except as a basis for analogy, and a
court must therefore often look to the judicial experience of the rest
of the English-speaking world. This gives the system flexibility,
while general acceptance of certain authoritative materials provides a
degree of stability. Nevertheless, in many instances, the courts have
failed to keep pace with social developments and it has become
necessary to enact statutes to bring about needed changes; indeed, in
recent years statutes have superseded much of common law, notably in
the fields of commercial, administrative, and criminal law. Typically,
however, in statutory interpretation the courts have recourse to the
doctrines of common law. Thus increased legislation has limited but
has not ended judicial supremacy."
http://www.lawreform.ie/publications/data/lrc110/lrc_110.html
Ireland: The Law Reform Commission Report on Statutory Drafting and
Interpretation: Plain Language and the Law, December, 2000
"Statute law is, by some distance, the major source of law. To some
extent, this fact has been obscured by the history of the legal
system, with its emphasis on judges and the common law, and its
reluctance to change assumptions laid down long before the
mid-nineteenth century when, at a time of rapid economic, social and
political change, statutes overtook case-law as the major source of
law."
Here is some material on the historical origins of the courts:
http://www.luminarium.org/encyclopedia/commonlaw.htm
"Common Law is a system of law in place in England and its colonies.
Common Law—law common to all England—was based on the principle that
the rulings made by the King's courts were made according to the
common custom of the realm, as opposed to decisions made in local and
manorial courts which judged by provincial laws and customs. The
crafting of English Common Law was begun in the reign of Henry II, who
had foreign legal learning and instituted legal reform in England. The
royal judges of Henry II, and of succeeding reigns, evolved the Common
Law from the procedure of the King's central courts—the Court of
King's Bench, the Exchequer, and the Court of Common Pleas.
Common Law is also understood to be 'law by precedent,'
distinguished from statutory law, i.e., parliamentary legislation to
which Common Law is complementary."
http://www.luminarium.org/encyclopedia/kingsbench.htm
brief history of the king's bench
http://www.luminarium.org/encyclopedia/commonpleas.htm
brief history of the court of Common Pleas
The Exchequer was founded by Henry I to define certain officials who
began to take full professional responsibility for the realm's
financial accounts.
http://www.radford.edu/~junnever/law/commonlaw.htm
A good discussion of the origins of the English court system.
http://www.usu.edu/history/norm/4250/overlex.html
Overview of the beginning of English court system.
http://www.newadvent.org/cathen/09068a.htm
Another history of the English court system.
http://93.1911encyclopedia.org/C/CO/COMMON_LAW.htm
Useful discussion of common law
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