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30 - Case-Law in Medieval England

from PART V - Legal Literature

Published online by Cambridge University Press:  05 December 2014

John Baker
Affiliation:
University of Cambridge
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Summary

Although the common law of England began to achieve a distinct identity before the English courts started to keep records, dependence on precedent seems always to have been one of its features. The common law described in Glanvill in the 1180s was conceived of chiefly in terms of remedies, and those remedies – enshrined in the ‘writs’ which commenced actions – were the results of decisions which were rigidly adhered to. Whether such decisions to introduce new remedies should be considered judicial or legislative, or even administrative, is a question ahead of the time to which it relates. But there seems to have been an understanding, at least by Glanvill's time, that once a form of remedy was established it was not easily to be changed. Although there was some initial experimentation, the Chancery would not generally issue writs in new forms; and the courts would not generally accept them if they did. There was some scope for innovation, particularly through actions on the case, but the importance of precedent in the writ system remained a feature of English law until the nineteenth century. However, the wording of writs constitutes only a very rudimentary kind of precedent. The writs were necessary preliminaries to judicial proceedings, and as such provided a framework for legal analysis; but they did not themselves contain propositions of law or indicate in detail what kinds of case fell within their scope.

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Publisher: Cambridge University Press
Print publication year: 2013

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  • Case-Law in Medieval England
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.033
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  • Case-Law in Medieval England
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.033
Available formats
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  • Case-Law in Medieval England
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.033
Available formats
×