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Alternative Visions of Legal Biography: an Abstract
Continue on UK site. Book file PDF easily for everyone and every device. This Book have some digital formats such us :paperbook, ebook, kindle, epub, fb2 and another formats. The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn.
The doctrine of precedent developed during the 12th and 13th centuries,  as the collective judicial decisions that were based in tradition , custom and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases as distinct from criminal cases , was devised as a means of compensating someone for wrongful acts known as torts , including both intentional torts and torts caused by negligence , and as developing the body of law recognizing and regulating contracts.
The type of procedure practiced in common law courts is known as the adversarial system ; this is also a development of the common law. The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books , of which the first extant was published in , the same year that Bracton died.
In , Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims.
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The jury reached its verdict through evaluating common local knowledge , not necessarily through the presentation of evidence , a distinguishing factor from today's civil and criminal court systems. Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be.
The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed.
Common law - Wikipedia
In time, a rule, known as stare decisis also commonly known as precedent developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another.
Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was at least in theory, though not always in practice common throughout the whole country, hence the name "common law". Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical church courts, brought him and England into conflict with the church, most famously with Thomas Becket , the Archbishop of Canterbury.
The murder of the Archbishop gave rise to a wave of popular outrage against the King.
Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes see also Constitutions of Clarendon. The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster , permanently except in the vacations between the four terms of the Legal year.
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law  —"legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.
However, the view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. In England, judges have devised a number of rules as to how to deal with precedent decisions. The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.
By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.
Often, they were clerics trained in the Roman canon law. Signs of this can be found in Blackstone's Commentaries on the Laws of England ,  and Roman law ideas regained importance with the revival of academic law schools in the 19th century.
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The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke , in his treatise, Institutes of the Lawes of England in the 17th century. The next definitive historical treatise on the common law is Commentaries on the Laws of England , written by Sir William Blackstone and first published in — A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts i.
Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. Other examples of reception statutes in the United States, the states of the U. Yet, adoption of the common law in the newly-independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception.
The Jeffersonians preferred a legislatively-enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: Even advocates for the common law approach noted that it was not an ideal fit for the newly-independent colonies: Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited.
Lawyer later president John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in , lawyers in Massachusetts donated their books to found a law library.
The Common Law: A Very Short Introduction
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, " One cannot be a judge in one's own cause " see Dr. Bonham's Case , rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke , presented the common law as a collection of such maxims.
Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. In an lecture at Harvard, he wrote: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
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In the early 20th century, Louis Brandeis , later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in his briefs , and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.
Reliance on old maxims is now deprecated. The degree to which these external factors should influence adjudication is the subject of active debate, but it is indisputable that judges do draw on experience and learning from everyday life, from other fields, and from other jurisdictions.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages at common law as opposed to equity was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted.