The English legal system is a common law system, and as such judicial decision- making plays a significant role in the development and refinement of the law. So, what are the origins of a mechanism so intricate and deeply enrooted in the English legal system?
Prior to the Norman Conquest in 1066 there was no unified legal system in England and Wales. Different regions had different practices, which were influenced by local customs and conventions. Law enforcement was the responsibility of regional Lords and Sheriffs. There was no recognisable central government at this time. When William the Conqueror came to the throne, he sought to establish a
single, unified legal system and a centralised government. He achieved this unification by travelling
throughout the country with his justices, to hear disputes and administer justice. These travelling courts
were called the Curia Regis. The King and his justices carefully selected laws and customs from different
areas of the country and began to apply them consistently throughout the realm. In historical terms this
is the origin of the ‘common law system’: a legal system which is ‘common’ to the country as a whole.
As the common law was gradually developed, it slowly became more and more rigid, until eventually its
development stalled. The factors causing the rigidity were many. The early common law operated on the
basis of a restrictive form of stare decisis. This strict form of precedent meant that judges were bound to
follow decisions made in earlier cases. There were inadequate mechanisms available to avoid ‘bad’
decisions, and as a consequence the law became stale and inflexible. To add, the only available remedy
at the time was damages, or in other words, monetary compensations. This was not always a suitable
As a result of these defects and other inefficiencies in the common law system, many individuals were
left without adequate means of redress. Individuals began to petition the King, requesting the resolution
of their dispute. As the number of petitions increased, the King delegated the responsibility of hearing
these disputes to the Lord Chancellor, who was free to determine individual cases on the basis of ‘what
seemed right’, without worrying about precedent. A body of distinct rules began to emerge from these
courts, known as the ‘rules of equity’. The courts of equity also developed a number of innovative
remedies; known as ‘equitable remedies’. These, in essence, supplemented those available at common
law, and included the likes of specific performance, injunctions, rectification, and rescission. The most
important point to note in relation to equitable remedies is that they are discretionary in nature. This
can be contrasted with damages that are available as of right. A particular problem that arose as a result
of the development of equity was the operation of two bodies of law within one, apparently unified
system. The common law had one body of rules that were applied only in the common law courts.
Equity, on the other hand, had an entirely different body of rules, available only in the Chancery Courts.
This situation inevitably led to conflict, which was eventually resolved in the Earl of Oxford’s Case. The
case held that in the event of conflict between the two, equity would prevail.
In circumstances where a claimant requested an equitable remedy it was essential that they
commenced proceedings in the Courts of Equity. Common law courts were unable to administer
equitable principles and remedies. Eventually it was decided that there was no need for equitable
principles and common law principles to operate in separate courts. Nor was it necessary for the
common law courts and the courts of equity to operate different procedures. As a result, The Judicature
Acts of 1873–75 provided that equitable and common law principles and remedies would now operate
in all courts. It is worth noting that the Judicature Acts did not fuse equity and the common law. In
reality, it simply brought together the administration of equity and the common law. The common law
and equity, therefore, continue to exist as separate bodies of law.