The Law as She Is Spoke
Created | Updated Apr 9, 2003
There are three sorts of Law, mostly (there are others, but they're minor ones in out-of-the-way-areas). Common Law, Civilian Law (that's Civilian as an adjective formed from ius civile, "law of the city, the city in question being Rome) and Shari'a. I only mention Shari'a because a lot of places use it as their secular law as well as their religious law - it's the sum of the Koran and centuries of Islamic religious jurisprudence, and usually runs in parallel with one of the other two main systems.
Common Law is the one I do for *ahem* a modest living. It all started with 1066 and all that. For the benefit of Johnny Foreigner, 1066 was the last time this island off the north-west coast of Europe was successfully invaded (as distinct from 1688, when it was subjected to a hostile management buy-in from Holland) by force of arms.
That was William the Conqueror, and he had his own Norman ideas of what a legal system should be. He invaded a country full of Angles and Saxons and Britons (who by this stage had come to be known as the Welsh, a word meaning "foreigner") who had their own ideas too.
William's idea of a legal system was that his friends got great tracts of land in which they could do as they damned well pleased, provided they pitched up with a small army when he needed some fighting done. (Which happened a lot: William the Conqueror was also known as William the B*****d, for pretty much the reason you'd imagine. Most people who called him it generally did so through a froth of blood where one of his knights had stabbed them in the lungs. In those days a sucking chest wound was nature's way of telling you to be polite(r) to men with armies of armoured sociopaths at their disposal).
Over the years the feudal concept of anarchy regulated by whim and force of arms settled down, and the various baronies got to settling their own local laws. Meanwhile the King's court (being a step up from the Barons he could do as a damned well pleased in the whole country, subject to not annoying the barons on their own turves as when they pitched up with a lot of knights the king wanted it to be because he had asked them to, not because they thought they could run the country better than he could) dealt with matters on which the king wanted a nationwide policy set, like land law and inheritance for knights and nobles (commoners didn’t count).
Along came Henry II. (That's as in Henry the Second, not as in Henry II – The Sequel. After “The Madness of George III” got re-titled for the cinema, I stopped making assumptions about reader understanding.) He decided the whole thing was a mess, and started sending out his judges from the king's court to hear cases up and down the country, and to take a note of how they decided the cases so that they'd be consistent. The idea was that now everything was a matter for the king’s court, and over time we had a law for the whole country. A Common Law, in fact.
You may appreciate that this is simplified somewhat. You will also appreciate that when this was happening, the US and Australia were inhabited by people who, in their failure to invent guns before Europe invented Columbus and Captain Cook, had their opinions on the law, who owned their country and the rights and wrongs of genocide more or less ignored. This I mention purely as a corrective to the assertion in another article in the Guide that England and Wales weren't common-law countries before 26th April 1999.
The basis of the common law is this: when a judge decides a case, he has to decide it as nearly as he can in the same way that all the judges before him decided cases just like the one he just heard. Where there's a jury, he has to explain the law to them so that they can decide the case on the same principles as did all the other juries who heard cases like the one they just heard.
What happens if the case is like none that's ever been heard before? Well, there's a lot of philosophising about this one, but it basically boils down to the judge taking the best cut he can at doing justice between the parties and stating what the law should be in terms that he thinks should be a good guidance note for future judges.
The idea is that the law then becomes predictable - judges follow in each others' footsteps and you can extract from the written notes of their judgments the essential principles of the law and then charge a client a whopping fee for passing on the results of your labours. (there's actually nothing difficult about this, in much the same way that there's nothing difficult about writing C++ programs or extemporising dactylic hexameters. Practice makes perfect.)
We also have courts of appeal, who can overrule as many judges as they like (judges can't depart from each others' decisions, but Courts of Appeal can say that judges have been getting it wrong for years). The UK's court of final appeal is the House of Lords (which is also a chamber of the legislature, and presided over by the Lord Chancellor, an officer of the Executive arm of the government. We hold separation of powers in contempt in the UK) who can overrule anyone, including themselves.
That's not all there is to the law. Parliament can also pass statutes. They have titles with the word "Act" in them. They make new law and parliament can do what it damned well pleases in this regard. The judges have to apply the resulting mess in the courts, and, bless them, frequently ignore parliament's intention because the cowardly rabble in Westminster "cannot have meant" to do what they patently intended to do. They thus do utter violence to the language of the Act rather than apply a law they think is stupid.
So that's common law and statute. Incidentally, when you're trying to work out the law on a point, statute always trumps common law.
Example: in 1968, we got the Theft Act which replaced larceny, embezzlement, mopery, and a whole host of other bizarre subdivisions of the general crime of "nicking stuff" with four basic offences. They were:
1. Theft (nicking stuff)
2. Robbery (nicking stuff by threatening violence),
3. Burglary (entering premises as a trespasser and nicking stuff or committing one of a number of other crimes including rape, arson and criminal damage) and
4. Obtaining By Deception (which is exactly what it sounds like and there are a few subdivisions of that as well).
(The fact that we needed another Theft Act in 1978 to cover a few points parliament had missed is neither here nor there. For ten years, joyriding was perfectly legal provided you took the car back and topped up the petrol afterward and didn't damage the car.)
Back to the plot: Civilian Law, which is the other main system. This one started in Republican Rome, grew up with the Roman Empire and survived long after the Empire split in two and finally fell. Two men are responsible for its preservation: The Emperor Justinian (otherwise famous as the world's most successful Yugoslavian) and Napoleon (otherwise famous as a French bastard, neatly linking us back to to William of Normandy, Conqueror and Bastard).
Justinian found the law of the Eastern Empire in a bit of a mess, and ordered it tidied up and pruned and generally edited. Napoleon found the law of France in a mess, with every little region and district having its own variation of the Roman law that Caesar had left behind.
Napoleon drew up the Code Napoleon (well, actually he paid a whopping fee to a team of lawyers to draw it up for him) and set it out as a single, nationwide legal code. It was based on the old Roman ius Civile as tidied up by Justinian. Oh, all right, as tidied up by the team of lawyers to whom Justinian paid a whopping fee. It was a fairly robust piece of work, since it has formed the basis of most of Europe's law for two hundred years.
The reason it got adopted over the whole of Europe is that Napoleon had a bigger army than anyone else and that sort of tends to win jurisprudential arguments in a way that no amount of debate will. After we sent in the Duke of Wellington and his lads to put the boot in, people kept using the code as a system of law out of habit.
And that's the law. The rest is details.
Common Law is the one I do for *ahem* a modest living. It all started with 1066 and all that. For the benefit of Johnny Foreigner, 1066 was the last time this island off the north-west coast of Europe was successfully invaded (as distinct from 1688, when it was subjected to a hostile management buy-in from Holland) by force of arms.
That was William the Conqueror, and he had his own Norman ideas of what a legal system should be. He invaded a country full of Angles and Saxons and Britons (who by this stage had come to be known as the Welsh, a word meaning "foreigner") who had their own ideas too.
William's idea of a legal system was that his friends got great tracts of land in which they could do as they damned well pleased, provided they pitched up with a small army when he needed some fighting done. (Which happened a lot: William the Conqueror was also known as William the B*****d, for pretty much the reason you'd imagine. Most people who called him it generally did so through a froth of blood where one of his knights had stabbed them in the lungs. In those days a sucking chest wound was nature's way of telling you to be polite(r) to men with armies of armoured sociopaths at their disposal).
Over the years the feudal concept of anarchy regulated by whim and force of arms settled down, and the various baronies got to settling their own local laws. Meanwhile the King's court (being a step up from the Barons he could do as a damned well pleased in the whole country, subject to not annoying the barons on their own turves as when they pitched up with a lot of knights the king wanted it to be because he had asked them to, not because they thought they could run the country better than he could) dealt with matters on which the king wanted a nationwide policy set, like land law and inheritance for knights and nobles (commoners didn’t count).
Along came Henry II. (That's as in Henry the Second, not as in Henry II – The Sequel. After “The Madness of George III” got re-titled for the cinema, I stopped making assumptions about reader understanding.) He decided the whole thing was a mess, and started sending out his judges from the king's court to hear cases up and down the country, and to take a note of how they decided the cases so that they'd be consistent. The idea was that now everything was a matter for the king’s court, and over time we had a law for the whole country. A Common Law, in fact.
You may appreciate that this is simplified somewhat. You will also appreciate that when this was happening, the US and Australia were inhabited by people who, in their failure to invent guns before Europe invented Columbus and Captain Cook, had their opinions on the law, who owned their country and the rights and wrongs of genocide more or less ignored. This I mention purely as a corrective to the assertion in another article in the Guide that England and Wales weren't common-law countries before 26th April 1999.
The basis of the common law is this: when a judge decides a case, he has to decide it as nearly as he can in the same way that all the judges before him decided cases just like the one he just heard. Where there's a jury, he has to explain the law to them so that they can decide the case on the same principles as did all the other juries who heard cases like the one they just heard.
What happens if the case is like none that's ever been heard before? Well, there's a lot of philosophising about this one, but it basically boils down to the judge taking the best cut he can at doing justice between the parties and stating what the law should be in terms that he thinks should be a good guidance note for future judges.
The idea is that the law then becomes predictable - judges follow in each others' footsteps and you can extract from the written notes of their judgments the essential principles of the law and then charge a client a whopping fee for passing on the results of your labours. (there's actually nothing difficult about this, in much the same way that there's nothing difficult about writing C++ programs or extemporising dactylic hexameters. Practice makes perfect.)
We also have courts of appeal, who can overrule as many judges as they like (judges can't depart from each others' decisions, but Courts of Appeal can say that judges have been getting it wrong for years). The UK's court of final appeal is the House of Lords (which is also a chamber of the legislature, and presided over by the Lord Chancellor, an officer of the Executive arm of the government. We hold separation of powers in contempt in the UK) who can overrule anyone, including themselves.
That's not all there is to the law. Parliament can also pass statutes. They have titles with the word "Act" in them. They make new law and parliament can do what it damned well pleases in this regard. The judges have to apply the resulting mess in the courts, and, bless them, frequently ignore parliament's intention because the cowardly rabble in Westminster "cannot have meant" to do what they patently intended to do. They thus do utter violence to the language of the Act rather than apply a law they think is stupid.
So that's common law and statute. Incidentally, when you're trying to work out the law on a point, statute always trumps common law.
Example: in 1968, we got the Theft Act which replaced larceny, embezzlement, mopery, and a whole host of other bizarre subdivisions of the general crime of "nicking stuff" with four basic offences. They were:
1. Theft (nicking stuff)
2. Robbery (nicking stuff by threatening violence),
3. Burglary (entering premises as a trespasser and nicking stuff or committing one of a number of other crimes including rape, arson and criminal damage) and
4. Obtaining By Deception (which is exactly what it sounds like and there are a few subdivisions of that as well).
(The fact that we needed another Theft Act in 1978 to cover a few points parliament had missed is neither here nor there. For ten years, joyriding was perfectly legal provided you took the car back and topped up the petrol afterward and didn't damage the car.)
Back to the plot: Civilian Law, which is the other main system. This one started in Republican Rome, grew up with the Roman Empire and survived long after the Empire split in two and finally fell. Two men are responsible for its preservation: The Emperor Justinian (otherwise famous as the world's most successful Yugoslavian) and Napoleon (otherwise famous as a French bastard, neatly linking us back to to William of Normandy, Conqueror and Bastard).
Justinian found the law of the Eastern Empire in a bit of a mess, and ordered it tidied up and pruned and generally edited. Napoleon found the law of France in a mess, with every little region and district having its own variation of the Roman law that Caesar had left behind.
Napoleon drew up the Code Napoleon (well, actually he paid a whopping fee to a team of lawyers to draw it up for him) and set it out as a single, nationwide legal code. It was based on the old Roman ius Civile as tidied up by Justinian. Oh, all right, as tidied up by the team of lawyers to whom Justinian paid a whopping fee. It was a fairly robust piece of work, since it has formed the basis of most of Europe's law for two hundred years.
The reason it got adopted over the whole of Europe is that Napoleon had a bigger army than anyone else and that sort of tends to win jurisprudential arguments in a way that no amount of debate will. After we sent in the Duke of Wellington and his lads to put the boot in, people kept using the code as a system of law out of habit.
And that's the law. The rest is details.
