IEL 5 History of English law/Geschichte des englischen Rechts

Introduction to English law for translators and/or non-lawyers

English law has been developing for over 1,000 years. Sometimes it is necessary to know some legal history in order to understand English law. This is not the space for a full history, though.

(Lawyers with a few courses on legal history under their belts feel free to look away).

Take the concept of equity. All my introductory notes can do is draw attention to its existence. Translators who suddenly come across a term from equity in the middle of something else should at least have enough orientation to know where to start their research.

What may be of interest are the following areas:

1. The history of the courts, especially those in London. Germany has a nice tidy (at least on the surface) system of courts, with three instances in several branches. England and Wales has a less logical system, which has grown up over a longer period of time. Learning about the development of the courts through the ages may make this clearer.

2. The history of contract and tort. Contract and tort developed out of what are known as the forms of action, and you might encounter references to this part of legal history. A form of action was a writ (very approximately Klageschrift – better Klageformel – see commentary) with a particular wording. If your legal proceeding matched one of the writs/forms of action, you could start proceedings. But if there was no form of action available for your situation, you were helpless.

For example, there was a writ in what was called an action of covenant that could be used to sue someone who had not performed a contract under seal. So contracts under seal have always been valid without any rigmarole. If the contract was not under seal, and A built a house for B, but B did not pay, there was an action of debt that meant A could sue B for the money. However, if B paid but A did not build the house, there was at first no action available for B to sue A.

How this situation was remedied and contract law was developed out of the writ of assumpsit is too long a story for this page, but it is one that may be encountered by translators.

3. Real actions and personal actions

The earliest actions to be permitted related to land – also known as real property or real estate. They helped a person get back land (res, Latin for thing, meaning the thing itself rather than money damages).

Other actions were called personal actions: the remedy was not a right in land against the rest of the world, but a right against an individual person.

4. Common law and equity
In the period up till 1875, two separate systems of law developed: first, common law, and later, equity.

Before 1066, there existed local courts, which provided revenue for the lords who ran them. They were not standardized. They continued in existence after 1066, but gradually lost importance as William I’s new centralized system of law came into effect.

After 1066 there was a gradual change to a central system of law under William I and his successors. This central system was known as the common law (meaning law common to the whole of England – the first meaning of the term common law). Much of this change happened not in 1066, but in the 12th century, especially in the reign of Henry II, 1154-1189.

As described above, the common law courts developed a restricted number of writs, so that not everyone could obtain a remedy. On top of this, the usual remedy was damages, but not in every case was that a good remedy.

People turned to the king – known as the ‘fountain of justice’ – to help them. The Chancellor, the King’s chaplain and most important official, decided on behalf of the king whether to help. By the end of the 15th century, the decisions of successive chancellors were forming a new, parallel system of law. A new court came into existence, the Court of Chancery, and the Chancellor became a judge who decided according to his conscience.

There were now two systems of law: common law (this is the second meaning of the term common law, meaning the law apart from equity) and equity.

More about the term common law and more about equity in later entries.

Vocabulary note: a remedy is what you want the court to award you: damages, specific performance. Synonyms are redress and relief. Sometimes it might be translated as Klagebegehren (also prayer for relief). It might be translated as Abhilfe, but the commonly encountered translations Rechtsmittel and Rechtsbehelf are not correct.

Equity is a misleading term. It is not necessarily any fairer than the common law. The German term Billigkeitsrecht has been developed to translate it, but if you translate into French, you should avoid équité.

For an excellent, brief and manageable account in German of English private law and its history, see Dieter Henrich, Einführung in das Englische Privatrecht. I don’t know the third edition (2003, co-author Peter Huber). The second edition (1993) was not a major departure from the first (1971), because so much of the book is historical.

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