LAWS104 Lecture Notes - Lecture 1: Curia Regis, Colonial Laws Validity Act 1865, Precedent
LAWS 104 - LEGAL READING, WRITING & READING
Wk. 1 - The Origins of our Laws and Legal System
What is the Law?
Must understand history of England first, then Australia also.
Must also understand how laws and societal norms change over time.
Purpose of the law,
Legal theory and scholarship have contributed to the understanding of the law:
Natural law
Legal positivism
Legal formalism
Critical legal scholarship (e.g. Feminist legal theory)
Civil law is not the law we have, not the legal system Australia has, it is the law that
developed in continental Europe that was brought to Australia with colonisation.
Common law is Australia’s law system that is derived from England but adapted and
changed to fit Australia.
An understanding of how the English legal system developed is importance as the
English system is the foundation on which the Australian legal system has been built.
Timeline of Law
11th century – Norman Conquest 1066
13th century- Magna Carta 1215
17th century – bill of rights 1689
18th century – act of settlement 1701
Together the 1689 and 1701 acts delivered a constitutional settlement
19th century – colonial empires, moves towards federation
20th century – federation; growth of international law
The roots of English law
The conquest of England by William, the Duke of Normandy in 1066 set in train the
events that resulted in the development of the legal tradition we now refer to as the
Common Law.
find more resources at oneclass.com
find more resources at oneclass.com
Prior to the norman conquest, England had anglo development that existed in England
and which was refined by the normans as feudalism.
Feudalism was a system of land ownership based on a formal social heirachy
Land was granted to the nobles who were loyal to the king.
One od the prime responsibilities of the monarch at this time was to hear comlaints
from subjects.
Because King and his delegates had no knowledge of the area, they trated these
petitions with the attitude of , like cases should be treated alike.
That was the foundation of Stare Decisis; standing by the decision. Courts are obliged
to respect the principles established by previous cases.
Over time a body of royal rulings built up, dealing with the petitions for justice. What
developed as a corollary to the kings need to establish and maintain peace and order
throughout the land.
The term common law, reflected that the kings rule applies to all people throughout
the land, to common people and nobility.
The king gathered a body of trusted advisors, Curia Regis, the kings court, gradually
decisions were made only by the Curia Regis, eventually they made most decisions.
Curia Regis – three common law courts
1. Common Pleas
2. The exchequer
3. Kings bench
Writs are the basis for instituting actions, for each type of complaint there was a
different writ. To be able to go to court, your complaint had to fit into one of these
writs.
Early Trial Procedure
This is a trial by ordeal. This is testing to see if a person would float or drown,
scalding a person and seeing If they healed within a period of time; or trial by battle.
These procedures were eliminated by 1300s, except trial by battle; which ended in 18th
century.
Equity
Beginning in the 15th century, people increasingly approached the king wit petitions
complaining of injustice – the injustice claim was often about injustice in the common
law courts.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Laws 104 - legal reading, writing & reading. The origins of our laws and legal system. Must understand history of england first, then australia also. Must also understand how laws and societal norms change over time. Legal theory and scholarship have contributed to the understanding of the law: Critical legal scholarship (e. g. feminist legal theory) Civil law is not the law we have, not the legal system australia has, it is the law that developed in continental europe that was brought to australia with colonisation. Common law is australia"s law system that is derived from england but adapted and changed to fit australia. An understanding of how the english legal system developed is importance as the. English system is the foundation on which the australian legal system has been built. Together the 1689 and 1701 acts delivered a constitutional settlement. 19th century colonial empires, moves towards federation. 20th century federation; growth of international law.
