Common Law and Equity

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Outline the development of common law and equity.


The Law in England didn’t come about all at once, but has developed over the centuries. There are 5 different sources of law: Customs, Judicial decision, Acts of Parliament, Delegated Legislation and, most recently, European Law. However, new law is still being created today.

The law as we know it today all started in 1066, when William the Conqueror invaded England. He found a country with no single system of law, just sets of customary rules which differed from area to area. This was due to the different invaders who had settled in different parts of England, bringing their laws with them. William decided to set events into motion that helped bring about the system we have at present.

William introduced the feudal system, in which all land belongs to the king, and he slowly started to gain control of England. He then split the land up and granted parts of the land to people who supported him and who were willing to grant him services, e.g. barons. He then made them pay taxes to him yearly. They in turn granted land to their followers and then them to theirs. This meant that the king had gained control of the whole country.

The King’s Justice was introduced for any landholder who had a problem that could not be sorted with their landowner. They were able to apply directly to the king, and William made himself available to them. The King’s Justice was administered by the Curia Regis which was a body of advisors to the king, who would apply a system of rules, keeping customs the king thought were best and discarding those he felt were inappropriate. These rules applied to the whole of the country and soon became known as common law.

Various central courts started to develop and the Royal Courts which were located at Westminster started to send itinerant justices into the provinces on assize. In 1176 the king split the country into 6 circuits and itinerant justices just travelled round each separate circuit which made the system faster and more efficient. These judges would visit the different areas in the land and listen to any matters that needed sorting; they would try and sort out the matters and then would return to London to give their verdict. The system of judicial precedent was used and the decisions made by the courts were followed in all similar cases. This was known as stare decisis which means let the decision stand, and it meant that the law became more predictable and constant.

The problem with the King’s Justices was that they were very expensive, so only the rich or those with spare money could use them. However, by the time of Henry II, the royal courts were impartial and had great authority, and they could decide a judgement and enforce it quicker. They developed its bench of Judges and its Bar of Advocates. These were all advantages of taking a dispute to The Royal Courts rather than local courts.

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So from the 13th century, written records were kept, which put a definitive stamp on any judgement since no one could argue with the authority of the court. And, by 1250, by taking all the best local laws and applying them throughout the land, a common law had developed.

At first the common law system was thought of as a fair system but over a period of time it became rigid and fixed which caused problems with common law. By the end of the 13th century no new writs were allowed to be created, and therefore claims would only be allowed if ...

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Summary: An excellent historical outline of the development of common law and equity, showing how equity is still relevant today. Rating: *****