4. The Common Law

King Henry II (reigned 1154-89) was particularly interested in law and order, and played an outstanding part in the development of the legal system. He understood that a single system of justice for the whole land under the control of the king would not only help to unify the country, but give him great power. He studied how best to achieve this.

In 1166 Henry issued a Declaration at the Assize of Clarendon that the remaining judges should be sent out on circuits to travel different parts of the country. When they did so they had to apply the laws that had been made by the judges at Westminster. In this way many local customary laws were replaced by new national laws. As these national laws would apply to everyone, they would be 'common to all'. These laws therefore became known as the common law.

The system which developed, of judges sitting in London and also travelling the country, became known as the 'Assize system'. this day High Court judges still sit in London for part of the year and then travel the country to hear cases in much the same way as they have done for centuries.

Although judges, when travelling on Assize, would wherever possible put into force the same laws as were being applied at Westminster, they would not altogether ignore the customs of the region. They would learn from them, and if they approved of them they would be prepared to accept them as the law, sometimes even carrying them on to other parts of the country, and back to Westminster itself. The judges sitting in London held their courts in Westminster Hall.

The common law, originally based upon the common customs of town and country and gradually developed over the centuries, has become one of the most prized features of our national way of life. Many of our most famous judges have been known as 'great common lawyers', committed to the advancement of our laws and the rule of law. The common law has been aptly described as 'The common-sense of the community, crystallised and formulated by our forefathers'. This is because, as we shall see, many of our laws have been based upon what the courts would expect the 'reasonable' man to do and think in certain situations.

5. The British Constitution.

The way in which a country is governed, and power is organised and distributed, is called its constitution.

In many countries the constitution is written down. They therefore have what is known as a written constitution.

In the countries of the United Kingdom we do not have a written constitution to tell us how power is to be divided up. The way in which we are governed is of course known, and has been written about in many books, but we do not have one document which sets it all out for us.

Until 2000 we had no single document to guarantee our rights as citizens, but that at least has changed. But We do now have a statute which guarantees our 'human rights'—the Human Rights Act 1998 and we will be looking at the rights which it confers later in this book.

The British unwritten constitution has been developing for over 700 years, and it continues to do so. It is in part founded upon statute and case law, but mainly upon custom and convention—the widely accepted view of proper behaviour, which has become hardened into accepted rules of law. According to Laws of England, the constitution is based upon the idea that 'no body or political party has a monopoly of wisdom, that State bodies should be democratically and legally accountable, and that they should promote good govern­ment in the general interest, rather than in their personal interests or the interests of limited sections of society.'

In practice this means that no one person should be given so much power that he or she can become a dictator and tyrant. Power is separated and distributed in such a way that this cannot happen. This principle is called the separation of powers.

The British Constitution is therefore unwritten and it is flexible. It is open to relatively quick change by Act of Parliament to meet the changing needs of the nation. This is one important difference between our system and that of the USA, which, being written, is more rigid, and can only be changed by special procedures, which can take a long time.