LAWS1006 Lecture Notes - Lecture 2: Curia Regis, English Property Law, Precedent
16 May 2018
School
Department
Course
Professor
Kelly He
2. English Legal History
• Inherently conservative legal system of ours, relies on common law and precedent
• This common law distinguished from other Western legal systems because of reliance on
previous court decisions
• Implications on the nature of court reasoning
Roots of English Law
• Australian legal and political institutions does not find roots in the natives and indigenous
peoples customs and traditions but rather in those of the colonial powers settled in 1788
• 1066: Conquest of English by William, the Duke of Normandy was a key turning point in legal
history, ramifying in disputes and motions that led Australia to follow the distinctive legal
features of British colonies
• Pre-conquest laws: Anglo-Saxon customary rules lacked commonality, based on local custom.
Since England had been invaded many times, the kingdom was separated into localities with
differing customs that lacked unified governing laws, norms and rules
• Norman conquerors introduced feudalism – at the top of the hierarchy was king, then land-
owning nobles called the tenants-in-chief, then sub-tenants and land-holding freeman. This
chain created the underlying premise of a mutual promise – loyalty of subjects to king, and
kings would protect tenants in times of need
• Feudal system allowed commonality and control of all the country; demise of local laws
• Feudal system formed basis of English property law until 1921
How the common law came to be:
• Norman kings had many responsibilities including that of holding court receiving petitions
from people who complained of acts of injustice by local officials
• King had no knowledge of local arrangements, so these petitions were dealt on the basis that
these cases should be treated equally and alike - foundation of stare decisis – a legal principle
by which courts are obliged to respect the principles established by prior decisions
• King would less likely be prejudiced or parochial than local lords so people sought him
• The king became the man to establish and maintain peace through this new system of private
dispute resolution – now known as the common law
Formalisation of legal structures
• King had gathered a loyal and trusted body of advisers - Curia Regis – the kings court. They
functioned as a general advisory and counselling body for the King. The King also appointed
justiciars who acted/ruled in his absences from English
• Since people always sought the Kings intercession in a dispute by approaching him in person,
this became very inconvenient so the Curia Regis and justiciars became significant in acting in
his absence
• England was divided into a number of regions tat allowd the Justices in Eyre (travelling
justices) to hear and resolve disputes in certain parts of the country
• Curia Regis became divided into special bodies, made up of professional judges, formed a new
body called the Court of Common Pleas
• Body of financial advisors for royal revenue- Court of Exchequer – the British Treasurer today
is known as the Chancellor of the Exchequer
• Group of advisors travelling with King divided into two groups – those that advised on
resolutions of individual disputes (Coram Rege) and those advising on general policies
(Council)
• Common Pleas, Exchequer and Coram Rege together known as common law courts
Writ system
• While the division of the Curia Regis into three separate courts tried to cope with the demands
of a cetnralised government, there were still too many disputes
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Document Summary
Inherently conservative legal system of ours, relies on common law and precedent: this common law distinguished from other western legal systems because of reliance on previous court decisions. Since england had been invaded many times, the kingdom was separated into localities with differing customs that lacked unified governing laws, norms and rules by which courts are obliged to respect the principles established by prior decisions. Formalisation of legal structures kings would protect tenants in times of need. How the common law came to be: owning nobles called the tenants-in-chief, then sub-tenants and land-holding freeman. Writ system: while the division of the curia regis into three separate courts tried to cope with the demands of a cetnralised government, there were still too many disputes. Instead, they grounded their judgements on christian precepts. Injunction: a court order requiring a party to do something or cease doing something. Rescission: a court order terminating a contract.
