Free «The History of Common, Statutory and Administrative Law» Essay Sample

Law plays a critical role in society — it is essential for people to live peacefully and remain problem-free. Law is a creation of humans, something they have created to modulate the society through the introduction of justice. Equity and fairness standards are determined by government and courts, and they are applicable to every individual within their jurisdiction (Kovacs, 2015). The law gives protection to victims and punishes those who commit unlawful actions. If a society lacked a system of law controlling how people lead their lives, then there would be no society to live in. The society would be full of chaos as people would only make decisions that would benefit them, based solely on their principles. People would be able to commit crimes if they wished so, as well as murder, harm, steal, rape, bully, trespass, and even terrorize others without any worry of the legal implications of their actions (Barkan et al., 2015). Law has evolved over time, starting with the common law that originated from the United Kingdom, followed by statute laws that were the product of democracy, and finally administrative laws, which deal with modern issues that the constitution, statute, or customary laws are unable to address (Barkan et al., 2015). The law provides a legal basis on which economic, political, legal, regulatory, and ethical relations of a society are managed.

History of Common Law

The common law commonly referred to as English common law arose in the early years of Middle Ages from the King’s Court, a sole royal court that was set up in Westminster, England. Common law courts did not contain substantive rights, but rather offered procedural solutions to social, political, and economic issues. With time, the common law courts have evolved to produce a modern system where rights came before the procedure. Until the late 19th century, the common law, especially in England, continued to be developed by the judges and not the legislators. English common law was mainly created after the Norman Conquest of 1066. Local customs determined most matters while the church played a critical role in government. All crimes were regarded and compensation for civil wrongs and damages was paid to the victim (Kovacs, 2015). The Norman Conquest did not result in the sudden end of Anglo-Saxon law, but the colonial rule by Norman conquerors generated change.

During the formative era of common law, English economy mainly depended on agriculture, and land was a precious form of wealth. A money economy was significant only in commercial towns such as Norwich, London, and Bristol. Political authority was rural and anchored on land ownership while the land was controlled by feudal relations. The consistency and unity of common law were elevated by the early dominant status acquired by the royal courts — whereas the king’s council focused on important affairs of the state, the new Norman court exercised wide judicial powers (Kovacs, 2015). It was the judges, mainly statesmen and clergy, who “created” the common law.

The distinct feature of the “common law” is that it is based on precedents — disputes in common law judicial system are determined by the previous precedent. In a situation where parties of a dispute disagree on which law to follow, common law court takes into account past precedential rulings of relevant courts where it synthesizes the principles of past precedent and tries to apply it to the current cases. In incidences where a similar dispute has been determined in the past, that precedent becomes binding to the current case. The principle of resolving a current case by using a similar past precedent is called stare decisis. If the court establishes that the current case is distinct from all previous cases and when legislative statutes are either ambiguous or silent in response to the question, the judges have the power and duty to resolve the dispute. However, the court must highlight the reasons for its decision, and those reasons should agglomerate with previous decisions as precedent in order to bind future litigants and judges. Therefore, the common law is the body of law created by judges and it stands in contrast to as well as on equal footing with acts of the Parliament that are made through the legislative process and promulgated by the executive branch before being applied to resolving disputes.

Common law appeared in England in the period of the Middle Ages, and it spread among numerous other countries that experienced colonization by the British Empire. Currently, a third of the global population lives in the territories that apply common law or jurisdictions mixed with the civil law. Countries that refer to common law in solving political, social, and economic problems are Australia, Barbuda, Botswana, Cameroon, Canada, Bangladesh, Barbados, Kenya, Micronesia, Namibia, Singapore, Hong Kong, Ghana, Cyprus, Fiji, Sri Lanka, South Africa, Zimbabwe, Jamaica, Ireland, India, Grenada, Guyana, Burma, Belize, Cameroon, and the United States of America, among other countries (Nonet, 2017). The judicial activities in nations are guided by the tenets of the common law.

 

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English common law has become an integral part of the legal transformation of England from the unorganized legal organization in the proto-states or tribal chiefdoms to a centrally governed legal civilization. For a period of over 400 years, from the eighth century to the eleventh, common law system became the basis for settling economic, social, and political disputes. The local customs of England became increasingly formalized, and the structure of Feudalism gradually displaced egalitarian structures of tribal affiliation. Political, social, and economic disputes were now being resolved with the guidance of the common law (Nonet, 2017). Previously owned tribal lands were handed to individuals under the private property ownership rights envisaged in the common law under the control of feudal lords. Therefore, common law evolved to become glue that brought peace to the warring tribes, spurred economic growth through the introduction of private property rights, and brought the legal order as it was the common basis of resolving disputes.

The common law emphasizes the centrality of the judge in the progressive improvement of the law and the concept that the law is a continual restatement of legal principles through the rulings of the court (Nonet, 2017). Common law has been developed progressively by the judges of the British royal courts as the basis of their decisions, and it was enriched over time by judges of other jurisdictions who recognized the power of the accumulating doctrine of the common law. Gradually, the common law spread to the United States of America.

In the United States of America, common law is subjugated to state and federal legislative enactments. Furthermore, common law is subordinate to legislative law and hence it can be overruled. For instance, the legislative law can declare fornication between unmarried persons as a legal act even when the common law declares it illegal (Nonet, 2017). Once the legislature passes the law, it exits the history of the common law. Even though federal and state legislatures have power over federal and state common law, the US Supreme court has the ultimate power in interpreting the legality of the federal and state common law. The common law is at the bottom of the hierarchy among different types of law in every state of the US, and the hierarchy of forms of law starts with the common law at the bottom, followed by state laws, state constitution, and finally federal constitution at the apex of the hierarchy. The feudal rulers created common law as a means to consolidate power.

As a way of consolidating power, feudal lords demanded that all disputes be filled at local “court” that was guided by the common law for settlement. By 1066, England was organized into eight large kingdoms that were considered as independent feudal landholdings (Leyland & Anthony, 2016). Hundreds of courts were established, and they were essentially the important meeting points where residents would discuss all manner of local problems and resolution of disputes. The power to hold court as well as to profit from it was the primary hallmark of a feudal leader. Early feudal rulers claimed that all paid compensatory damages should go to the lord and not to the offended party. The right of a feudal ruler to collect the profits arising from the administration of justice gradually became the driving force in the development of the common law.

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Common law’s success can be mainly attributed to the fact that the law is logically derived from generally accepted principles and that the entire subject area such as torts or contracts is decided by some common principles that are widely accepted. The expositions of these techniques and general principles underpin the basis of legal education and scholarship in the common law tradition. Thus, common law was the basis that guided social, economic, and political fabric of English people and their colonies. Common law also became the foundation of current legislation. Furthermore, it offered a remedy on the matters that were not covered by any written laws that were supposed to ensure the fairness of economic, political, legal, and social relations in the earlier days of English civilization.

History of Statutory Law

Statutory law also traces its roots to English legal system. Statutory law, referred to as statute law, is a body of the written law that is set down by the legislative body or by the single legislator in cases of absolute monarchy. Contrary to common law or administrative law, statute law is promulgated by the executive. Statute law may originate from local municipalities and state or national legislatures. In terms of a hierarchy of laws, statute laws are above the common law, but they are below the constitution. Thus, the statutory law was an advancement of the common law that was not documented.

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Statute law’s origins can be traced to the Parliament of England. The demand for statutory law arose as early as 1563, but a formal petition was addressed to the England Parliament only in 1610 (Nonet, 2017). Halsbury’s Laws claimed that the first act of statute law amendment was meant to remove obsolete or unnecessary enactment that no longer served the purpose which it had been initially intended for (Leyland & Anthony, 2016). Statute law was created because the common law system did not correspond to the societal needs. For instance, prior to the Crown Proceedings Act, it was impractical to sue the minister and state department on the basis of tort claims.

Statute law was passed down by a controlling authority that had a legal mandate to make laws, meaning that the law had to be assented by the executive branch before its enforcement. In the US, local, state, and federal government are all controlling authorities, and they are the institutions that create laws for people living within the country (Kovacs, 2015). Furthermore, the purpose of statute laws is to promote justice, prevent harm, as well as regulate political, economic, legal, and ethical issues that affect people living in a given jurisdiction (Nonet, 2016). Therefore, since statute laws are created by the representatives of people, they encourage goodness in the society.

Statute law was created as an effort to address the limitations of the common law. Studies indicate that justice was twisted under the common law system since one party had to win while the other party in a dispute would lose. Furthermore, the common law was biased — similar disputes would be decided differently, thus generating confusion and chaos in the court system (Kovacs, 2015). Creation of statutory law is a rigorous exercise, an exercise in which the legislative bodies and the executive branch of the government must cooperate.

The history of statutory law can be summarized in three phases. The legislation was initiated in the House of Commons in the Britain after realizing the shortcoming of the common law. The legislation started as a petition exhibit in the Parliament (Kovacs, 2015). The petition was going to be approved with or without the alteration from the King. When amendment in the law was made due to the favorable response, the new law as drafted by a committee of legal experts was promulgated or assented by the King. As the result, the copies of the promulgated law circulated around the Kingdom and it entered the Statute Roll, which is called the Statute book in the modern days (Leyland & Anthony, 2016). The second phase commenced in the 15th century, where petition incorporated the draft of the law, the modern day “bill”. During that era, drafting was implemented by private entities. The third phase dates back to the earlier half of 19th century, when the government started to nationalize legislation. In that time, individual draftsmen were employed by the parliamentary counsel (Barkan et al., 2015). From the United Kingdom, statute law spread to other legal jurisdictions, including the US.

 In the US, the legislature that passes a variety of bills cooperates with the law and thus becomes statutory law known as Congress. The legislature can pass two types of law — public and private ones. For instance, the laws that govern how people should drive a car apply to every person, which makes them public. Conversely, private laws are applied to specific individuals or institutions. An example would be a legislation only applying to the food industry that ensures that food offered to the public is safe for consumption. Most legislations enacted by the US Congress are public laws.

History of Administrative Law

Administrative law is referred to as an emerging type of power that was developed to tackle the challenges of the modern society (Nonet, 2017). The framers of the constitution would not have anticipated the legal challenges that modern complexity can present, and their legal experts had to devise the administrative law (Kovacs, 2015). The adminsitrative law is a legal framework within which public administration takes place. Administrative law was derived from the need to create as well as develop an effective system of public administration under the confinement of the law, a concept that can be compared with the ancient notion of justice under the law. The primary objective of the administrative law is to ensure efficiency in the administration of justice (Leyland & Anthony, 2016). However, the administrative law has the potential to frustrate administration of justice as it is considered a negative phenomenon resulting in injustice. Administrative legislation is complemented by the constitutional law to a great extent and it is difficult to make a clear distinction between the two.

Since administration entails the exercise of power through the executive branch of the state, administrative law is of political, legal, social, and economic importance. The structure of judiciary and courts, the organization of legislature, the function of the head of state, and the composition of the cabinet is normally considered as matter of constitutional law whereas the substantive and procedural provisions pertaining to the operation of judicial review, local, and central government are considered as domain of the administrative law (Hamburger, 2014). Some American and French jurists consider administrative law as a component of the constitutional law (Leyland & Anthony, 2016). Laws pertaining to public health, housing, education, and other public services are regarded as a part of the administrative law.

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There are numerous complaints regarding the administrative law, including that it is a burden to the economy, that it is arbitrary, and that it is an intrusion upon personal and corporate freedom. Administrative acts are constraining or binding edicts that come through the mechanisms other than through the written law (Barkan et al., 2015). For instance, a state agency might issue a regulation constraining Americans’ activities that pollute the environment by restricting how Americans can use their land (Leyland & Anthony, 2016). This is an attempt to exercise constraining legislative power not through an act of Parliament, but rather through the administrative law.

Administrative law is regarded as a branch of public law since the law deals with decision-making units of government such as commissions, board, or tribunals that are a part of national regulatory schemes. Administrative law has been experiencing rapid growth, especially in the 20th century, when legislative bodies created more state agencies globally to regulate the economic, political, and social spheres of human relationships (Leyland & Anthony, 2016). In most nations, the executive branch of the government exercises certain powers that are not derived from the written constitution, legislation, or customary laws. In the UK, it is the prerogative power of ministers or the crown to exercise power on matters such as pardoning a criminal, making treaties, issuing passports, declaring war, and conferring honors under the administrative law (Hamburger, 2014). In France, Belgium, Italy, and other European countries, certain concerns pertaining to the higher interests of the government are recognized under the administrative law (Hamburger, 2014). Mostly, the administrative law has played a critical role in addressing some of the concerns that the common or statute laws failed to address. Thus, administrative law has been instrumental in regulating political, social, and economic affairs of the society.