Group 11 Assignment (4) ..Legal Systems

MOI UNIVERSITY
SCOOL OF LAW
ACADEMIC YEAR 2020/2021
CONTINOUS ASSESMENT TEST
COURSE CODE: FLB 106
COURSE: LEGAL SYSTEMS
TASK: GROUP ASSIGNMENT
LECTURER: J. AYAMUNDA
GROUP 11 MEMBERS
1. SPENSOR P. JUMA NETTANIRAH.........................LLB/5129/21
2. ALLAN OMONDI.....................................................LLB/5073/21
3. ALFRED MAKERE....................................................LLB/50/19
3. DOROTHY JEMALI RUTO.......................................LLB/5209/21
4. ROBI JOHN RUTH...................................................LLB/5371/21
5. RONOH ABIGAEL.....................................................LLB/4170/21
6. BAETRECE GAICIUMIA...........................................LLB/4145/21
7. NZOMO K. MUTINDA..............................................LLB/4155/21
8. ROBERT KING'ORI...................................................LLB/5216/21
REASONS WHY THE ENGLISH COMMON LAW TOOK ONE ROUTE AND THE
CONTINENTAL LAW THE OTHER
MOI UNIVERSITY
SCOOL OF LAW
English common law is a collective name for legal systems that are primarily based on judicial
precedents. What this means is that common law courts will look for previous precedential
judgments and base their verdicts on them if there is a disagreement between the parties as to
which law is applicable to their dispute. Unlike common law, the continental (or Romano -
Germanic) legal system places the main emphasis on a set of core principles that are codified
into a single preferable system serving as the primary source of law.
Main difference between the two systems is that in common law countries, case laws—in the
form of published judicial opinions—is of primary importance, whereas in civil (Continental)
law systems, codified statutes predominate .But these divisions are not as clearly-cut as they
might seem .In fact, many countries use a mix of features from common and civil law
systems .Understanding the differences between these systems first requires an understanding of
their historical underpinnings.
The original source of the common law system can be traced back to the English monarchy,
which used to issue formal orders called “writs” when justice needed to be done. Because writs
were not sufficient to cover all situations ,courts of equity were ultimately established to hear
complaints and devise appropriate remedies based on equitable principles taken from many
sources of authority (such as Roman law and “natural” law). As these decisions were collected
MOI UNIVERSITY
SCOOL OF LAW
and published ,It became possible for courts to look up on precedential opinions and apply them
to current cases .And thus the common law developed .Civil (Continental) law in other European
nations ,on the other hand ,is generally traced back to the code of laws compiled by the Roman
Emperor Justinian around 600 C.E .Authoritative legal codes with roots in these laws (or others)
then developed over many centuries in various countries ,leading to similar legal systems ,each
with their own sets of laws.
King Henry's able leadership and personality was crucial in distinguishing English common law
from Continental law therefore playing a major role cementing English common law. King
Henry II leadership was remarkably different from the continental leadership.In his time, the
common machinery was unshakably established and his personal drive was of great importance.
Though a Normand by origin, King Henry ii greatly contribute to the development of the English
common law. His good lawyering and judicial techniques gave him very good arbitration skills.
He created/consolidated a unified court system. Early before he came to power, the local court
system was used with local laws. There were no general laws applied across the whole country.
When he came, he sent his lawyers to seat as judges in local courts. As they undertook their
MOI UNIVERSITY
SCOOL OF LAW
duties, they developed common principles that eventually created a unified court system where
now appeals lower courts could be made to higher courts.
He elevated local customs to national level. He helped develop a sense of confidence on the
people of England concerning their customs and to resist their incorporation of Roman law into
their system. This was very much aided by the Norman lawyers who sat at the local courts as
judges. They realized that this rules of the English people were common from region to region
hence, they developed a national system of laws out of the local customs of the people. This was
however not the case on the other part of Europe where the citizens only had pride on their
region rules and so them to be so supreme to an extent that they could not use laws from other
regions.
He introduced the writ system which provided remedy for specific wrong. These writs acted as
claim forms. When an individual had a claim, he had to fill a claim form {writs} e.g, writ of
trespass e.t.c. However, this writ system was very rigid for an individual claim had to fall within
the existing writs, failure to which he would lose the case. Hence, litigants were sometimes
forced to appeal to the king of redress .This lead top the introduction of equity, which mitigated
the rigidity of the writ system through application of principles of fairness {maxims of equity}.
MOI UNIVERSITY
SCOOL OF LAW
Standing court decisions were also applied. The civil law system however could not
accommodate a separate body of laws kike equity hence remainedconsecutive.
He reinstituted the jury through introduction of legal education. Lawyers and judges received
training at the court inns where they were thought laws as a craft. They received training mainly
through apprenticeship at the feet of judges. This training produced a set of professionals who
foresaw the development of the English common law. The jury system hence changed giving rise
to high ranking judges and lawyers than otherbased on their work experience. The civil law
system however trained the legal professionals at the feet of professors in a scholarly manner
leading rigidity of civil law.
He separated state courts. Before he came to power, there were no specific issues dealt with by
state courts and church courts i.e. there was confusion in court system. However with time he
helped distinguish which cases were to be left for the church and which to be left for the state.
For instance, the church was left with petty cases while serious crimes were to be dealt with the
state courts. The church courts however applied canon laws. However, with time the influence of
canon laws diminished through writing of false papal letters by the elites who accused Roman
laws as bad rules as they argued that church leaders made them. They were applied both by the
MOI UNIVERSITY
SCOOL OF LAW
state courts and church courts and one could not distinguish which laws applied and in which
courts.
Henry ii encouraged the people of England to work hard hence he developed in them an
enterprising spirit. Indeed it was during this time that England saw the modernization earlier than
the other countries. Most of their systems became modernized e, g the court system developed
from local court system to central court system. Laws were also modernized from customary to
national. The other parts of Europe however modernized and later hence when Roman laws was
spreading ideologies of modernization, England had already modernized hence their system
could not be shaken.
Modernisation of the legal system in England earlier than the rest of the continent created a legal
gap between England and the rest of the continent.For many centuries before the twelfth and
thirteenth centuries, England and the rest of the continental countries were not that different,
especially in the way of administration. Both England and the continent's administration were
majorly based on the customary laws that were largely unwritten and were administered in the
local courts, and even onwards, feudalism became common to both England and the continent.
The major differences that came later are when England adopted the common law system while
the continent took up a law legal system that was majorly absolved in the Roman law. This
MOI UNIVERSITY
SCOOL OF LAW
difference came about in the twelfth and thirteenth centuries during which momentous
modernization of European society in general and majorly law in particular brought about the
breach. In all Europe, a process began which subsequently led to the sovereign national states of
modern times and modernized law. More universities rose and with them study of Justinian's
Corpus JurisCivilis, professional jurists educated in these universities occupied this universities.
The momentous modernization of the whole Europe, though this vast surge forward happened
everywhere, it did not take place at the same time. It was also different in intensity and stress. In
the content, some countries took decisive measures before Roman law exercised any profound
influence in their legal systems, in others, major steps were undertaken in their law system as
nearly the exact time as the Roman law started to take up influence thus having an impact in their
legal system. In others still, it took place long after the Roman law had become a mature and
well-established system. The breakthrough of a centralized and modernized legal system took
place incredibly early in England, before the Roman law was in any position to exert any
profound influence. It was only in England that a royal court was accessible to all free men in the
twelfth century while in the rest of Europe the Paris parliament in France which emerged in the
middle of the thirteenth century was the only court that served nationally in France but also only
as a court of appeal. Also in Europe, which was dependent on law books and commentaries as
source of authorities in the course of judicial administration, in the eleventh century the only
MOI UNIVERSITY
SCOOL OF LAW
book that was efficient and extensively used, was the Glanvill? It was only in England of all
Europe that had abolished all practical intents and with the archaic modes earlier than all the
others and also the practice of court enrollments was done early in England.
The modernization of the law in England not only did it came exceptionally early in England it
also was strikingly systematic. Various causes of actions brought before the justices in the at
Westminster and in Eyre, which they solved in the practice of discharging their duties were
consequently used in solving the subsequent cases that had similarities with the one that had
been dealt with before they were therefore set as precedents. This new system of jurisdiction was
both national and royal, the bearers of the whole system being the king himself and his central
justices at Westminster. This greatly differed from the situation in the continent, where local and
regional customs and rules reigned superior compared to the others. There was competition for
supremacy within the nations' regions and locals, each place regarded its own customs and rules
more superior compared to the others, they therefore could not agree for other regions customs to
be imposed on them. The modernized law of England was indigenously based on known rules
and familiar practice. It owed very little to Roman law, though this claim is disputed by the
acquaintances of Glanvill with the institutes of Justinian of and Bracton, who knew a great deal
of Roman law but still, with is very real understanding of Roman law, was unrepresentative, a
great breakthrough for the common law system as it could not be impacted. But this was not so
MOI UNIVERSITY
SCOOL OF LAW
on the continent, In the twelfth century and onwards in the continent, learned commentaries and
on the Corpus JurisCivilis and Roman canonical treatises on procedure where regarded more
important. From the thirteenth century onwards, more treatises on customary law and important
royal legislation came about, and which had absorbed Roman law at great lengths. But by that
time the common law and the common law courts were already firmly and deeply established. It
had taken root and received their essential techniques in the days of Henry II, before Roman law
was influencing any legal practice in lay courts anywhere in Europe.
In the twelfth century, Romano-canonical learning began to influence the practice of Europe's
ecclesiastical courts and, in the course of the thirteenth century, the Roman law went to influence
its lay courts and also the writers of customary law. However, it was too late for the common law
to be affected in any substantial way. The common law was already set in its own techniques,
practices, ideas and institutions had created its own framework that was to last for centuries and
also acted as a barrier to the civilian influence. The common law system adequately covered all
needs extensively that the attempt by the clergy in their request to change English marriage laws
was opposed by the barons. Modernization in Europe of the law system in particular therefore, is
among the major reasons as to why the continent and England took different pathways.
MOI UNIVERSITY
SCOOL OF LAW
The unity and centralisation of the kingdom and the legal system in England is another
reason.Theachievement of the old- English kingship in building a unified state contributed
greatly to the basis on which the common law was established. England had learnt to live as one
country, under one government with a national network of institutions and court system while
elsewhere in the continent (like in the French state) leadership and kingdoms were disintegrating
and falling apart.The unified England state and it's able leadership in the tenth and eleventh
centuries afforded a conducive political and economic basis on which later generations could
build the common law.
The common law being the oldest national law in Europe automatically becomes the first body
of law that was common to a whole kingdom in Europe and the only body of law administered
by a central court with a nationwide competency.At this instance in the entire continent (England
excluded) the law administered was either local or regional but not national. In order to establish
and provide a national legal system, the rest of the continent had to adopt jus commune (Roman
cannon laws). This was because the continent needed a unifying legal system that could not be
produced by their divergent and feudal customs because they were not sophisticated enough and
regional pride could not allow imposition of customs of one region on all others. Therefore
England, being an already united states with a centralized and well established legal system,had
MOI UNIVERSITY
SCOOL OF LAW
no need for another unified legal system hence was not affected by the profound influence of the
Roman Cannon law that swept across the continent at the time.
Due to the unity in the kingdom and the consolidation of powers by the monarchy in England
contrary to other parts of the continent,the breakthrough of a centralized and modernized legal
system took place exceptionally early in England even before the influence of the Roman law in
the continent.The English common law and it's judicial apparatus became royal and national with
the king and his central justices being the bearers of the whole system and its application that
was nationwide and not local magnates as it was the case with the rest of the continent.This was
very unlike the rest of the continent, where local and regional customs reigned supreme and even
the so considered central courts judged according to the local customs of their location in appeal
cases.Since common law courts were well rooted and structured,the Roman law that was
influencing legal practice in lay courts in other parts of the continent at the time could not exert
any profound influence on it.
After the loss of Normandy,a greater feeling of common nationality developed among the
English and consequently turned the English Normans into Englishmen.Due to this unity,only
the Magna Carta(which had nothing to say of French or Nomans) and the common law were the
only positive factors that United them.They considered that the Common law offered a way out
MOI UNIVERSITY
SCOOL OF LAW
of the differences between Englishmen and Nomands and held them together solving existing
contradictions unlike the rest of the continent that lacked a common system at the time.For this
reason the people of England proudly defended their legal system and rejected any intrusion by
the Roman cannon law that was proudly influencing the Continental courts.
Wealth is also another factor that led to differing routes taken by both common law and the
continent.For the legal system to be stabilised, resources are essentially needed. Wealth therefore
becomes a necessary element it development of legal system.Though at the time the economy
and wealth of England was of the same measure as that of the rest of the continent, England
unlike the rest concentrated her wealth in the development of their legal system.For the twelfth
century England where the common law was born had a strong agricultural economy, it had a
monetarial system dominating in some area and a small freehold in others. It also had developing
towns which provided funds necessary for the development of common law.
King Henry who is said to be the wealthiest king used his wealth to employ good brains to aid in
court proceedings. He acquired his wealth from court proceedings this is based on the fact that
there was no free justice one had to pay for justice. He also acquired his wealth from taxing the
increasing urban centers as well as those at the rural areas. The revenue of the penal operation
under the assize of clarendon and the repression of unlawful disseisins was also an important
MOI UNIVERSITY
SCOOL OF LAW
source .Due to availability of financial resources for legal system purposes, English legal system
was able to experience immense development leading to it's strong establishment compared to
the legal systems of the continent.Due to it's well established and funded legal system, English
common law was able to withstand and resist influence by the Roman cannon law that was
creeping up on the entire continent
The national character and the national spirit of the people of England had great impact on
organisation and establishment of various institutions including the court system .Pringsham, a
great legal philosopher, claims that the English national character was the prime mover of
common law. He is seconded by Sir Fredrick Pollock who also claims that unlike the rest of the
continent's legal systems ,English common law was made by Englishmen and it entirely
expressed the spirit of England .Unlike the legal systems of the continent ,English common law
developed independently from foreign influence .This was so because of the strong national
character that none of their systems could be interfered with by external
influence .However ,the union between the native Englishmen and their Norman masters also
contributed to the aspect of national character. This answers the most often asked question on
whose national character between the Englishmen and Normans shaped the common law. Some
aspects of common law are from the English for example; forms of land holding, villages as it
appeared in hall moots and country courts. Some however are from the Normans for example;
MOI UNIVERSITY
SCOOL OF LAW
origin of common law was essentially from the feudal land law of the Normans, the sworn in
question also come from Normandy, and this typical executive writ had been developed by the
Normans. In the 13th century, the Normans and English law fused into one national and common
law binding together freemen of all descent becoming truly English unlike the rest of the
Continental law. Owing to this self recognition and identity through the common law, the
Englishmen distinguished themselves from the continent and protected their legal system as their
identity hence taking a very different route from the one taken by the continent.
In conclusion, the uniqueness of the English common law fron the Continental law is attributed
to many reasons. However, some of the reasons cannot be empirically proven and have created a
lot of debates among legal scholars as to their merit as reasons.These reasons include wealth,
national spirit, national character and population. Finally despite taking different routes, the
English common law and Continental law are not historical strangers but are rather companions
since they compliment each other and borrow some aspects from each other.
MOI UNIVERSITY
SCOOL OF LAW

Group 11 Assignment (4) ..Legal Systems

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Group 11 Assignment (4) ..Legal Systems

Uploaded by

Copyright:

Available Formats

MOI UNIVERSITY

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

1. SPENSOR P. JUMA NETTANIRAH.........................LLB/5129/21

3. DOROTHY JEMALI RUTO.......................................LLB/5209/21

4. ROBI JOHN RUTH...................................................LLB/5371/21

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106

COURSE: LEGAL SYSTEMS

TASK: GROUP ASSIGNMENT

ACADEMIC YEAR 2020/2021

CONTINOUS ASSESMENT TEST

COURSE CODE: FLB 106