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The relationship between Custom, Equity and Books of Authority in the development of Common Law - page 1
Keywords: Development of Common Law
By Sphinx on 02/01/2012
Level: Bachelor Honours Degree (BA, BEng, BSc etc)
Page Number: 1 of 5 pages: 1 2 3 4 5Common law or case law refers to a large extent, laws that are moulded by the pronouncements made hitherto by courts and not imposed by the parliament or other government officials. It is a stringent reasoning that uses the conditions of a case to evaluate the laws that are applicable. Verdicts that are arrived at in the adjudication like cases are important, and the dispute in question is weighed on the core of previous decided cases. The intensity of the resemblance among the cases, sequentially, fortifies the ratiocination based on them. In most cases, common law applies only within a particular jurisdiction.
From time to time, disputes arise which the parties are unable or unwilling to settle amicably and so they bring them to a court for resolution. After administering justice, Judges often issue orders giving effect to their decision otherwise called precedents about cases that bind lower courts in that jurisdiction (res judicata). The common law has continuously recognized that local customs which meet its requirements for recognition could be applied as law . The courts controlled claims to local customary rights more through the application of the requirement for recognition; and in practice relatively few claims to local customs have been recognised.
The concept, custom has been defined as “a practice that has been followed in a particular locality in such circumstances that it is accepted as part of the law of that locality... in order to be recognised by the courts it must satisfy certain requirements.” Prior to the Norman conquest of 1066, the law varied throughout the country. It was based on the local practices and customs, brought by invaders. Common law requires that before custom can be enforced as law it must not be paradoxical with any fundamental principle of law or statute; that it had existed from time immemorial as illustrated in Mercer v Dean ; that it have been exercised continuously and peaceably, as of right as shown in Mills v Colchester Corporation , that it should be satisfactorily clear both to its content and its beneficiaries as illustrated in Wilson v Willes and that it be regarded as ‘reasonable’ by the court. The requisites of antiquity and reasonableness are principally pertinent. Another factor that instrumented the development of common law was equity.
Equity is defined as “a system of natural justice allowing a fair judgment in a situation where the existing laws are not satisfactory.”
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