development and social structure in England which differed from that of the

Development and social structure in england which

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development and social structure in England, which differed from that of the continental European countries. Law in England was first and foremost a complex arrangement of procedural norms used to decide disputes between ‘free’ citizens (members of the feudal upper class and of the elevated citizenry). It was not so much a system of behavioural norms for their subjects, as it was on the Continent. More than anything, it (the law and the courts) performed a ‘peace-keeping/conflict resolution’ function, rather than a ‘steering’ or ‘guidance’ function. In their decisions, the judges followed the principle of ‘reasoning by analogy’ and ‘stare decisis’ (which, in Latin, means the binding force of precedent ), rather than the principle derived from the civil law tradition that in deciding a matter, one must look to the written word, and not to examples. Between the 11th and the 15th centuries, English law was in fact also influenced to an extent by Roman legal thinking (as a result of the Norman Conquest of England in 1066). However, there was never any reception of Roman law into England because the community of judges, 27
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY centralised at Westminster and the community of lawyers (organised into Guilds since the 14th century), firmly resisted the penetration of academics trained in Roman law into the English legal profession. At the time of the Norman Conquest there was no one set of laws operating throughout England. Instead, each local area had its own laws, based on the customs of the area. These laws were recognised and enforced by courts made up of freemen of the district. There were also feudal courts under the control of local lords, but these too had no consistency in their rulings between one area and the next. After their uninvited arrival, the Normans allowed these local courts to continue dispensing their custom-based justice. However they now lost their monopoly and the Norman kings became involved in the administration of justice: there was, after all, money in it, both from charging fees and from imposing fines. To cement their control of the country the Norman Kings and their officials (the ‘King's court’) travelled frequently throughout England. At each stop, people wanted to petition the King with various complaints against their local administrators and fellow citizens. The King naturally had the power to hear such petitions and to hand down binding decisions. Over time, ‘King's Justices’ were appointed to hear such petitions and to make such decisions on the King's behalf. To achieve consistency (and hence, as it was thought, greater justice), and because the King's justices were unfamiliar with the local customs of every area they visited, the justices tended to refer to decisions made by other judges in similar cases. Ultimately, the rule developed that justices were, in certain circumstances, obliged to conform with earlier decisions. This principle, known as the doctrine of precedent, is still in force today. We will
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