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The common law is often presented through

its history.
This makes it difficult to begin thinking
about the common
law today as one has to go back to
beginnings.
What I want to talk about in this short
video
is the history of the key institutions of
the common law.
But I'm really going to argue that our
focus
is on the contemporary situation of the
common law.
The contemporary common law cannot be
studied in a vacuum.
What I want to focus on are
two significant advance which define it's
contemporary reality.
The first thing that we're going to
consider and
pick up on later in this lecture is the
point at which the unite, United Kingdon
became
part of the EU, the European Union, in
1972.
And the other significant contemporary
moment that I want to look
at is the enactment of the Human Rights
Act in 1998.
The Human Rights Act made the European
Convention on Human Rights part of common
law.
I'll return to those points because the
first point I
want to deal with is this questions of
origins or beginnings.
Now this must take us back around a 1,000
years to the Norman Conquest of 1066.
Now the common law can first of all be
understood as the law imposed on the
institutions of Anglo Saxon England by the
Norman invaders.
So the phrase, the common law begins to
take meaning, to
take sense in that it is the law that
relates to everyone.
Not just the people in Mercy or Wessex,
or wherever these distinctions between
these Anglo-Saxon jurisdictions lay.
Over time, the phrase, the common law
becomes used to denote the law
replied by the courts the kings court as
developed through the system of president.
Point I will return to in a moment the
definition of president.
Now I think in history were presently
thinking
about around the 1100's a long time ago
then.
And the work of the Roman king, in
developing a single
body of law, which was to be used to
govern England.
Roman law had an important influence on
the common law.
This is another massive historical
question and I
can't hope to trace it ion this very
short presentation, but suffice to say
that Roman
law is an influence on common law as well.
Of course, has a major influence on most
civilian
legal systems that one finds throughout
the world today.
The next point in our whistle stop tour of
the common law that's important and
I'm deliberately at this point leaving out
magna
carte, which I'll talk about in a
different.
Presentation, all the commentaries written
by important scholars of the common law.
There are important commentaries written
on the common law in the medieval period.
Henry Debracton for instance writing in
1,235.
But what I'm going to do is take Sir
William Blackstone
who's dates were 1723 to 1780, as a major
point of reference.
Blackstone was a Justice of the Court, of
the
King's Bench, one of the common law
courts, then.
And, a commentator on the common law.
He wrote one of the most influential and
systematic studies of the common law,
Blackstone's Commentaries on the Laws of
England, between 1765 and 69.
This text describes the common law as an
unwritten law,
in contrast with the written law of
Statute or Codes.
Blackstone presented the common law as a
form of oral tradition, derived from
general customs, principles and rules
handed down
from generation to generation by the court
lawyers and judges who participated in the
common life or in the common life
of lawyers I guess in the ends of courts
to which they all belonged.
Eventually this old tradition was
reflecting the reports of
decision or at least the reports of the
more
important courts and this knowledge was
stored in written,
a written form, na, namely the Law or Case
Reports.
Now it's important to bear in mind that
there was
no organized system of court report until
the late 19th century.
And prior to that, all reports were really
reported by private initiatives.
[UNKNOWN] and, and it still isn't a single
unified service that provides law reports.
The key point to bear in mind here is that
common law is linked
to archives, to case reports, the case
reports indeed that you can see behind me.
To be a lawyer, to be a common lawyer, is
to
know your cases, is to know how the law
develops through cases.
Now, historically, the common law
tradition has always placed
the judiciary, the judge, at the center of
things.
Judicial decisions are seen as
constituting the
written law, a body of maxims, precedents,
ported decisions that constantly need to
be
rationalized and developed into a coherent
system.
The next point I want to make
relates to acts of Parliament, statutes or
legislation.
There are two sources of law for a common
lawyer,
the common law itself and act of
parliament or legislation.
Now, although the common law is judge made
and
case law remains a source of law,
influential legal
reformers active in the early 1800s, were
critical of
what they saw as the incoherent nature of
case law.
They drew on traditions of British
political thinking that focused on the
importance of sovereign power rather than
the law-making power of the judge.
In particular Thomas Hobbes' book,
Leviathan, published
in 1660, provided an important reference
point.
Hobbes argued that there should be a
single source of sovereign power, in a
nation.
Political events allowed this source of
power to be associated with parliament.
In the influence of other radical thinkers
like
Jeremy Bentham who was dates are 1748 to
1832.
And John Austin, whose dates are 1790 to
1859
further developed what was known as the
positivists approach to law.
The positivists stressed the importance of
a coherent logical analysis of the law.
And Bentham pushed forward various reform
projects that were
designed to give the law a single informic
philosophy.
Bentham disliked the old-fashioned nature
of the common law,
like you can get to a crumbling gothic
mansion.
Law had to become modern and be linked to
the rational government of a country.
By the late 19th century Statutes, or Acts
or Parliament,
had become a major source of law in
England and Wales.
That the state took on increasing
responsibility for economic management and
social regulation.
The volume of statute law continued to
grow.
While Bentham [INAUDIBLE] might not have
agreed with the growth of
state power and certainly did not
anticipate the welfare state of
the late 20th Century, it would certainly
be fair to say,
the social and economic policy required a
great deal of legislation.
One must also remember the political
changes that
underlay the soveringnity of parliament,
from the 1830s
onwards the franchise or in other words,
those
who had the right to vote, also expanded.
This was due to popular agitation, as well
as their work of reforming governments
who's sensitive broad
franchise was necessary to legitimize or
to make acceptable
the power of parliament, the sovereign
power of parliament.
Shortly after the first world war in 1918,
when the right to vote was
granted to women, the franchise included
most
adults in England, Wales, Scotland and
Northern Ireland.
We can link this point.
About the legitimacy of parliament with
the idea
that statutes are the supreme source of
law.
A statute will over ride inconsistent case
law.
This is because parliament is a democratic
body elected by the people.
It is therefore justifiable that
parliament creates supreme law.
Perhaps the most accurate contemporary
statement about the
sources of authority and law follows part
an
important right of jurisprudence who wrote
a book
published in 1961 called The Concept of
Law.
We can refer to two sources of law in the
UK.
Or in Heart's language, two rules of
recognition that
allow us to specify the sources of UK law.
Cases and statutes.
Statutes are the supreme source of law,
a fact that recognizes the sovereignty of
parliament.
We could say that this element of law,
reflects the legitimacy of parliament.
Judges have a law making power to develop
the rules of the common law.
Note however, that although this power is
subordinate to parliament
it should properly be seen as a law making
power.
We will return to the question of
legitimacy in a moment when
I'll say a few more things about the
relationship of judges to parliament.
I said in the beginning of this lecture
though, I was going to say a little bit
more about The Doctrine of Precedent, how
this
relates to the law making power of the
judge.
The development of the common law is
guided by The Doctrine of Precedent.
This means that cases are judged to be
similar, that
are judged to be similar or decided in the
same way.
In order to understand what judges are
doing, we need to see judicial reasoning
as
a process, a structure, a way of thinking
that allows the common law to develop
coherently.
It also limits Judicial lawmaking because
one has to remember that all judges
have, although judges have a lawmaking
power,
it is subordinate to that of Parliament.
This last part of this short lecture, I
want to say a little bit
about the Human Rights Act of 1998, the
European Communities Act of 1972.
What follows from the idea that parliament
is sovereign, that parliament could repeal
both of
these two acts if it so decided, takes
us to the issue of the unwritten
constitution.
Unlike most nations, Britain does not have
a single document that forms it's
constitution, though it's often referred
to the
fact that Britain has an unwritten
constitution.
One of its central ideas, is that
parliament is sovereign.
This means that parliament can make and
unmake, or repeal, any law that it likes.
It can over rule parts of the common law.
It can overrule earlier statutes.
This is true then, of Human Rights Act and
the European Communities Act.
The European Communities Act that makes
effectively the United
Kingdom part of the European Union the
Human Rights
Act that makes Europe the law of European
Human
Rights part of the common law of the
United Kingdom.