2015 judicial exam legal history knowledge points: the formation and development of English law

2015 Judicial Exam Legal History Knowledge Points: the formation and development of English law

England is the birthplace of the common law system, and the development of its law is relatively smooth, divided into three periods.

1. The formation of the English feudal legal system. The source of English law was the customary law of the Anglo-Saxon era. With the strong royal power and the establishment of a perfect royal judiciary, three major sources of law, common law, equity and enactment, were gradually formed, thus establishing the English feudal legal system.

(1) The formation of common law. The common law refers to the laws of general application that developed around the 12th century and were created by the common law courts and passed throughout the country. Its formation was a direct consequence of centralization and judicial uniformity.

After the conquest of England by William, Duke of Normandy, in 1066, he and his successors, in order to consolidate their rule and expand the power of the Crown, took various measures such as land surveys and the compilation of the "Domesday Book" (which was begun in 1086 and is also known as the "Final Tax Book"/Domesday Book). Domesday Book) to strengthen the centralization of power. For the unification of the judiciary, the king established the Council of the King's Bench, from which the Court of the Exchequer, the Court of Queen's Bench and the Court of Common Pleas, which had judicial functions, were gradually separated. These courts initially heard cases only at Westminster Abbey in London, but in order to extend the jurisdiction of the Crown, the judges began to travel to different parts of the country.

Judicial reforms in the reign of Henry II contributed greatly to the formation of the common law. Through a series of orders, such as the Edict of Windsor and the Edict of Clarington, the jury system was established and the trial by circuit was institutionalized. When judges conducted assizes, they heard cases with the help of juries, under the authority of royal decrees and with reference to local customs. When they returned to the Royal Westminster Abbey in London, they exchanged their opinions on the cases they had decided with reference to the local customs, recognized each other's verdicts, and agreed to use them on future tours of justice. On the basis of such jurisprudence, the common law that prevailed throughout the country was gradually formed, and so it is customary for later generations to refer to it as case law.

The writ system, which embodied the power of the crown, was also closely related to the development of the common law. It required the plaintiff to apply for a specific writ issued in the name of the king only after the plaintiff could claim the protection of substantive rights to the court. The writ became the proof of the right of action, without which no action could be brought. The common law characteristic of "procedure before right" was not unrelated.

(2) the rise of equity. Because the common law in the traditional writ system, there are limited scope of protection, the content of the rigidity of the defects of fewer remedies, with the development of social and economic development, can not meet the needs of the people. The parties who could not get fair protection from the common law courts, according to the historical tradition, filed more and more complaints directly to the king, who then entrusted them to the Chancellor of Justice for trial. 15 century formally formed the Court of Chancery (also known as the "Court of Equity") according to the practice of the Chancellor of Justice's trial, and gradually developed a set of rules of law different from the common law, that is, according to the "fairness" of the law, and the "equity" of the Court of Chancery. In the 15th century, the Court of Chancery (also known as the Court of Equity) developed a set of legal rules different from those of the common law based on the practice of the Chancellor of Justice, i.e., "equity" based on the principles of "fairness" and "justice", and gradually became an independent legal system different from the common law.

Relative to the common law, the law of equity emphasizes content over form, and the litigation process is simple and flexible, with neither writs nor juries required for trial. The Chancellor of the Judiciary accepted all cases that were not accepted by the common law courts. Equity adapted to the development of society and created many new rights and remedies, such as trusts and injunctions. It is generally believed that the law of equity was y influenced by Roman law.

The United Kingdom does not have a systematic written constitution, and its sources are constantly evolving with the changes in society. The British Constitution is a typical flexible constitution, its amendment procedures, effectiveness and ordinary law is the same, only the adjustment of social relations are different. The British Constitution is a product of long-term development of history, with strong continuity. Its sources are constitutional law, constitutional practice, constitutional jurisprudence, with diversity.

The common law is implemented in a wide range of areas; equity only in the common law is difficult to play a role in relief, is a supplement to the common law. At that time, it can be considered: the common law will be removed, equity no longer exist; and the equity will be removed, the common law will still exist. In later judicial practice, the relationship between the two court systems grew increasingly conflicted due to overlapping jurisdictions, the large number of cases shifted from the common law courts to the courts of equity, and the ability of injunctions from the courts of equity to interfere with the decisions of the common law courts.In the early seventeenth century, the conflict between the Common Pleas Judge Cocke and the Chancellor of the Courts of Equity, Lord Elsmere, was brought to a feverish pitch. The dispute ended when King James I established the principle of "equity first". The juxtaposition of the courts of common pleas and the courts of equity remained a distinctive feature of English justice until the judicial reforms of 1875.

(3) The development of statutory law. The enactment of law, i.e. statute law, is the legal norms expressly formulated and promulgated by the state organs or individuals enjoying legislative power. In the whole system of English law, the enactment of law plays a secondary role, and it only plays the role of supplementing, interpreting, organizing, modifying or reaffirming the case law. 1215 Magna Carta is an important process of the development of the enactment of law, and with it as the earliest historical source, the Parliament of the United Kingdom was gradually formed. With the strengthening of the legislative power of Parliament, the number of enactments gradually increased, and the status gradually rose.

2. Changes in English law after the bourgeois revolution. The revolution touched the ancient feudal legal system of England, which was mainly reflected in:

(1) the legislative power of the Parliament was strengthened, the principle of "parliamentary sovereignty" was established, and the status of the enactment of law was improved;

(2) the Cabinet became an administrative organ;

(3) the common law and equity were enriched and given to the bourgeoisie, and the law was given to the bourgeoisie, and the law was enriched and given to the bourgeoisie. were enriched and given a bourgeois meaning.

3. The development of modern English law. After the two world wars, the international status of Britain changed greatly, and in line with this, the legal system also produced profound changes:

(1) the simplification of the legislative process, delegated legislation has increased greatly;

(2) the electoral system was further improved, and basically established a universal, secret, equal, and fair electoral system;

(3) the activities of social legislation and scientific and technological legislation were strengthened:

(4) EU law became an important source of English law.