EVOLUTION &

DEVELOPMENT OF LAW
Lecture 2 & 3
BUSINESS LAW
AYESHA RAZA FAROOQ
EVOLUTION OF COMMON LAW
• Before the Normans Conquest in 1066, each locality in England
was subject to local customs & laws established by the local
ruler/chief

• The first Norman king, William the Conqueror and his successors
began to replace the local laws with one uniform system of law.

• English Common Law was developed over centuries by judges

(Judge made law) appointed by the monarch, who travelled
around the land making decisions in the king’s name

• Customs became an important source of law when deciding

cases provided they passed a series of rigorous tests & hurdles to
qualify recognition by the king’s judges
CUSTOMS
 Long established practice considered as unwritten law. In order
that a practice might be considered as a valid custom it should
have been exercised from time immemorial.
 It must have been exercised peaceably, openly and as of right

 Must be definite as to locality, nature and scope

 It must be reasonable

 Evidence of a custom may be proved

 By direct evidence by a witness of his personal knowledge of its
existence.
 By a witness testifying to its exercise.
 By evidence of a comparable custom in a similar trade or locality
PROBLEMS OF COMMON LAW
• Only limited number of cases were admissible
under the common law
• The emphasis of law at that time was legal
procedure over the merit of case
• Limited remedies at Law; Monetary compensation
(damages) was the only remedy available
 EQUITY COURTS
• To soften the strict rules of common law & to mitigate limited
remedies available and unfair judgments, Court of Chancery
(equity) under the authority of Lord Chancellor, were
established

• People who could not obtain justice in common law courts

appealed directly to the King’s Chancellor, ‘keeper of the
king’s conscience’

• Chancellor based his decision on principles of natural justice

and fairness, decisions based on what seemed ‘right’ , or what
parties had ‘intended’ to do
 EQUITY COURTS
• The Courts of Chancery developed new, unique and
appropriate remedies, called equitable remedies, to
compensate plaintiffs more fully

• These equitable remedies were injunctions, specific

performance, rescission and rectification

• Equitable remedies took precedence over the decisions of the

Kings Courts

• In the 19th century a law passed by the Parliament merged the

two court systems
Your Text Here
LEGAL SYSTEMS
Legal system refers to a procedure or process for
interpreting and enforcing the law. It elaborates the
rights and responsibilities in a variety of ways.
Three major legal systems of the world.
 Common law
 Civil Law
 Religious law
COMMON LAW
Common law, also called Anglo-American law, the body of
customary law, based upon judicial decisions and
embodied in reports of decided cases, that has been
administered by the common-law courts of England since
the Middle Ages. From it has evolved the type of legal
system now found also in the United States and in most of
the member states of the Commonwealth including
PAKISTAN (formerly the British Commonwealth of Nations).
CIVIL LAW
Romano-Germanic civil law system, dates to 450BCE, is
a compilation of Roman law, with some influence of
canon law, sometimes largely supplemented or modified
by local custom or culture. Two national codes (French
& German) became models for countries that adopted
civil codes
In contrast to Anglo-American law, in which laws are
created by judicial system & legislation, the civil code
and parliamentary statutes are the sole sources of the
law in most civil law countries
 Differences: Civil & Common Law
Features Civil Law Common Law
Legal System Legal system originating in Europe whose Legal system
most prevalent feature is that its core characterized by case
principles are codified into a referable law, which is law
system which serves as the primary source developed by judges
of law. through decisions of
courts and similar
tribunals.
Countries Spain, China, Japan, Germany, most United States,
African nations, all South American England, Australia,
nations (except Guyana), most of Europe Canada, India

Precedent Only used to determine administration of Used to rule on future

constitutional court matters or present cases
Written Always
Not always
constitution
Use of Modest and Restrictive Extensive and
argument and Fundamental
debate
RELIGIOUS LAW
Concept of justice and equality for all. Defined all
matters of life and the correct way of handling them.
Laid authority to a supreme power not known to man.
Beginning of moral code. Basis for all civil and criminal
law. On which morals and international law stands today.
Religious law refers to ethical and moral codes taught
by religious traditions.
The source of religious law is the deity, legislating
through prophets.
Religious laws are eternal and non-changing.
SOURCES OF LAW
1. Constitutions

2. International Treaties

3. Statutes and Ordinances

4. Judicial Precedents/Case Law

5. Administrative Law
STATUTORY LAW
 A formal written enactment of a legislative authority that
governs a state, city or country. Body of law enacted/passed by
Parliament. Statutes take precedents over common law/Judge
made law
 Temporary Statute
 A temporary statute refers to a statute, the duration of which is
limited at the time when it was enacted. It continues in force
until the time of its limitation has expired, unless sooner
repealed.

 Perpetual Statute
 A perpetual statute refers to a statute without limitation as to
time. The continuance of a perpetual statute is not limited,
although it is not expressly declared to be so.
JUDICIAL PRECEDENT/CASE LAW
Rules of law, doctrines & principles announced in court
decisions. Judgment/decision cited so as to justify a
decision in a later, apparently, similar case
Precedents provide stability, predictability and
efficiency when decisions and interpretations by other
courts are used as guides
With evolving social, political, technological
environment, departures from precedents are inevitable
Cases of first impression: no case precedent
 STARE DECISIS
The doctrine of binding precedent, or stare decisis, lies
at the heart of common law legal systems. This
practice of deciding new cases with reference to
former decisions, or precedents, became a
cornerstone of the English and American judicial
systems.
Stare decisis, is a Latin term which means to
‘stand on decided cases’
Thus, stare decisis has two aspects:

 decisions made by a higher court are binding on lower

courts; and second,

 that a court should not overturn its own precedents

unless there is a compelling reason to do so
TYPES OF PRECEDENTS
Authoritative Precedent:
 Generally binding and must be followed .

Declaratory Precedent
 Merely applies an existing rule of law.

Persuasive Precedent
 Need not necessarily be followed

Original Precedent
 Creates and applies a new rule of law, ‘cases of first
impression’
ADVANTAGES OF CASE LAW
Consistency: like cases decided on a like basis

Certainty: Can predict outcome in light of previous

judicial decisions
Efficiency: In the presence of established precedent,
most cases don’t need to be reargued saving litigants
time and money
Flexibility: Judges have considerable discretion to
overrule or distinguish previous decisions
DISADVANATGES OF CASE LAW
Uncertainty: The degree of certainty provided by the
doctrine of stare decisis is undermined by the absolute
number of cases that have been reported and can be
cited as authorities
Fixity: possibility that law may become ossified on the
basis of an unjust precedent; consequence of
perpetuating previous injustices
Unconstitutionality: fundamental question of judiciary
overstepping their theoretical constitutional role by
making law rather than restricting themselves to simply
applying it
CLASSIFICATIONS OF LAW
 Substantive Law and Procedural Law: Substantive law consists
of all laws that define, describe, regulate and create legal
rights and obligations. Procedural law consists of all laws that
delineate the methods of enforcing the rights established by
substantive law
 Private Law and Public Law: Private law is concerned with
disputes between private individuals or businesses and public
law involves the state or government
 Civil Law and Criminal Law: Civil law spells out rights & duties
between persons and between persons and governments as well
as relief available when person’s rights are violated. Criminal
law consists of wrongs committed against the state and
society/public as a whole.
JURISPRUDENCE
Philosophy of law. Study and theory of law.

• Natural Law: The law is based on what is morally correct and

ethical.

• Historical: The law consists of social traditions and customs.

• Analytical: The law is shaped by logic

• Sociological: The law provides a way to advance certain goals in

the best interests of society.

• Command: The law is the set of rules created and enforced by the
governing party.

• Critical Legal Studies: Legal rules are unnecessary and legal

disputes should be solved by using rules based on fairness.

• Law and Economics: Promoting market efficiency should be the

key concern of the law.
NATURAL LAW VIEW
Assumes that law, rights and ethics are
based on universal moral principals inherent
in nature discoverable through the human
reason.

The oldest view of jurisprudence dating

back to Aristotle.
POSITIVIST SCHOOL
Law is the supreme will of the State that applies
only to the citizens of that nation at that time.

Law, and therefore rights and ethics, are not

universal. The morality of a law, or whether the
law is “bad or good,” is irrelevant.
HISTORICAL SCHOOL VIEW
Emphasizes the evolutionary process of law.

Concentrates on the origins of the legal system.

Law derives its legitimacy and authority from

standards that have withstood the test of time.

Follows decisions of earlier cases.

LEGAL REALISM VIEW
View of law started in 1920’s.

Law must be viewed within the social context

Judges should take economic and social realities

into account.
Sociological jurisprudence tends to be activistic,
e.g., Civil Rights decisions.
Do not feel bound by past decisions.
 Legal Disciplines
Competition Law Corporate Law
Tort Law Consumer Law
Environmental
Contract Law
Law
Criminal Law Immigration Law
International Intellectual
Law Property Law
Property Law Labor Law
Equity Trust
 Definitions
Competition Law
 That part of law dealing with matters such as those arising
from monopolies and merger , restrictive trading
agreements , resale price maintenance and agreements
involving distortion of competition.

Tort Law
 A body of rights, obligations, and remedies that is applied by
courts in civil proceedings to provide relief for persons who
have suffered from wrongful acts of others.

Contract Law
 An agreement creating obligations enforceable by law. The
basic elements of a contract are mutual
assent, consideration, capacity, and legality.
International Law:
 International law consists of rules and principles governing
the relations and dealings of nations with each other.
 Public International Law
 The corpus of legal rules applying between sovereign states
 Private International Law
 The body of rights and duties of citizens of different
sovereign states towards one another.

Property Law
 Principles, policies, and rules by which disputes over
property are to be resolved and by
which property transactions may be structured.
Equity
 Any body of rules existing by the side of the original civil law,
founded on distinct principles and claiming incidentally to
supersede the civil law in virtue of a superior sanctity
inherent in those principles.

Corporate Law
 Law which deals with the formation and operations of
corporations and is related to commercial and contract law. A
corporation is a legal entity created under the laws of the
state it’s incorporated within

Consumer Law
 Laws designed to protect consumers against unfair trade and
credit practices involving faulty and dangerous goods or
dishonest claims or tactics
Environmental Laws
 Collective body of rules and regulations, orders and
statutes, constraints and allowances that are all concerned
with the maintenance and protection of the natural
environment of a country.

Immigration Law
 Immigration law serves as a gatekeeper for the nation's
border, determining who may enter, how long they may
stay, and when they must leave. It also provides the means
by which certain aliens can become legally naturalized
citizens with full rights of citizenship
Intellectual Property Law
 Intangible rights protecting the products of human intelligenc
e and creation, such as copyrightable works, patented
inventions, Trademarks and trade secrets.

Labor Laws
 Body of rulings pertaining to working people and their
organizations, including trade unions and employee unions,
enforced by government agencies.

Trust
 An equitable obligation which imposes on a person described
as a trustee certain duties of dealing with property held and
controlled by him for the benefit of the persons described as
beneficiaries , or, if there are not such persons , for some
purpose recognized and enforceable at law.