An Introduction to Legal History

o In common law system, the judges use the past as a yardstick for all their decisions i.e.
jurisprudence is given utmost importance.
o This makes common law extremely interwoven with history
 The Roots of English Law:
o William duke of Normandy Invades England >>> Declares the old system of anglo-
saxon laws would stand
o The problem is the lack of commonality due to it being based on local customs that
varied vastly
o The Normans never imposed a new system, always built on the existing systems and
improved them
o Normans introduced Feudalism, a system of economic and social organisation
FEUDALISM

AND SO ON
o In this system, the king granted lands to tenants in-chief that granted them to others like
their warriors, village or group chiefs and others to administer in the name of the king
and each tenant and all sub tenants are expected to give a part of their crops as tax and
take to arms if the king calls them on to fight in exchange for protection and help of the
king in tough times.
o The reason was simple for this system to exist, no Norman king had the power or
influence to hold all of england on their own so they granted lands to nobles in exchange
for their loyalty.
o This feudal system that was formed in 1066 was the basis for English property law till
1921.
The Birth of Common Law:
 The Primary premise on which the king and his delegates dealt with any dispute was that
similar cases be dealt alike.
  The lack of local biases and arbitrariness made the kings law more attractive and more
people started to seek the kings justice
 One more distinct advantage that the kings law had over the local law was its validity all
over the kingdom and not only in a particular area
 The body of rules that were birthed out of the hearings of the kings came to form the
body of the private dispute resolution that we call the common law.
Formalisation of Legal Structures:
 Curia Regis ( The King's Court) : Court is here not a court of law but the old sense of the
word as in the retinue (Aasthanam - Telugu) of the king.
 The role of the Regis was to advise the king in his decisions but gradually some matters
were completely left to the decision of the Curia Regis
 Justiciars: Viceroys to manage the affairs when the king was away from England (which
was very often)
 Justices in Eyre : A group of travelling justices who would not necessarily be members
of the Curia Regis but would carry the kings commission to deliver justice and for this
purpose England was divided into multiple Circuits with a group of justices per each one.
 The Court of the common pleas came to rise from a faction of the Curia Regis that
specialised in solving disputes bw the common folk.
 Court of the Exchequer was also a split off from the Regis, it dealt with revenue matters
 The remaining regis members came to be split into two parts, the kings bench (Disputes
involving the king himself and the royal matters) and the Council
 The Kings Bench, The Common Pleas and the Exchequer came to be known as the
Common Law Courts
The Writ System:
 The Curia Regis was split formally into three common law courts was to reduce the
burden but it was still very over-burdened
 Writ: An order from the monarch to the sheriff (the king's representative in the
county) to bring a man to attend court proceedings against him.
 For each type of writ, there would be a different format of form and these would be
bought from the royal office by the plaintiffs
 The number of types of writs was expanding rapidly, causing a fear among local lords
that the king was taking away all their powers
 This led to the eventual signing of the Provisions of Oxford under which, no new Writs
would be created without the approval of the council, which was dominated by local
lords.
Trial Procedures in the Early common Law
 Early procedures included Trial by ordeal or trial by battle but these became obsolete
and there was another procedure that was called "Wager of Law"
 Wager of Law: This was a procedure where the accused could produce a series of
witnesses who would, under oath support the Version of facts of the Defendant to
absolve him of the allegations.
 The travelling justices would soon enlist local people who would decide who was
probably lying by using their knowledge and experience and soon these men were
known as the jury.
 The jury was supposed to act based on its knowledge, so the concept of an impartial jury
is a relatively modern concept.
Equity:
 As the common law became more systemised, it became even more rigid. It was awfully
slow and due to a primitive methods of proof, it became pre occupied with form.
 This led to a U-turn back to the requests for kings justice, this time not against the local
lords but against the Common law
  The king at first took care of all these petitions himself but soon delegated them to the
chancellor, who was the official responsible for the issueing of writs.
 Most chancellors were trained mostly as a priest and instead of following set judicial
precedents and looking fo proof, they did not look into form and instead used christian
precepts( Beliefs)
 This body of law based on Christianity and made by the chancellors came to be known as
equity and the body set up by the chancellors to hear equitable cases was called the
Court of Chancery
 Equity is a discretionary system where the chancellor had the discretion whether or not
provide the remedy to the plaintiff as the plaintiff had to be morally deserving " He/She
seeking equity must do Equity" and "He/She who comes into equity must come with
clean hands" are the two equitable maxims
 When a dispute eventually did arise between common law and equity, the king
intervened and a conference decided that whenever there was a conflict between equity
and CL, equity would prevail.
Foundations of Modern Constitutionalism:
o Constitutional Law Came as the need for a law delineating boundaries between the
functions and powers of various delegates of the king became necessary.
 Magna Carta and the First Parliaments:
o The Magna Carta (1215) was an Agreement between the King John and a group
of Rebellious Nobles, named the barons, in which John agreed to more than 63
clauses the most imp of which are:
 Fixed place for the Court of Common pleas and not travelling with the
king.
 Appointment of people well versed with the law as sheriffs and Justices.
 A guarantee to all freemen that they would not be imprisoned or
dispossessed of their property except by lawful means
 Guarantee to freemen than justice would never be denied or delayed.
o The First Assembly was called by Simon de Montfort, an important leader of the
day and the leader of a rebellion that captured the king.
o However, the parliament is the modern sense of the word today was summoned
by King Edward I in 1295, it had nobles, representatives of nobles and
commoners and also 2 knights from each shire and two reps from each city and
borough.
o It was for a long time an advisory body and the king was not bound by the
decision of the parliament until 1414, during the rule of King Henry V that this
changed.
o King Henry VIII decided to Establish a new church of England in defiance of the
Catholic Church and had to include his parliament in the process to gain popular
support. This also freed the parliament of a major constraint, the political
authority of the Catholic Church.
 The English Civil war
o The Rule of James I was the start of the flash point, first he tried to impose
himself in the common law which was rebutted by the court and then tried to
change law through proclamations, which the courts held that only the
parliament could do.
o The successor, King Charles I tried to do away with the parliament by raising
taxes without summoning the parliament and by 1642, the parliament was at
open war with the King.
o Oliver Cromwell, a general led the parliament's forces and defeated the
royalisits in 1646 and charles was beheaded in 1649.
 o Cromwell named himself lord protector and dismissed the house of commons in
1653. His reign was relatively unhappy as there was no parliament and often
activities like dancing were banned and also the properties of the church were
destroyed/seized.
o In 1660 when Cromwell died, the parliament reassembled and invited Charles II
the son of Charles I to retake the throne.
o Charles was more or less same as his father and was also accused of being a
catholic in the now deeply protestant England and James II the brother of
Charles II assumed the throne, he stopped an ordinance from preventing
catholics from holding public office.
o He was deposed and his son in law James II from the Dutch House of Orange was
asked to assume the throne in 1688 and this series of evets was referred to as
the Glorious Revolution.
o The rule however came with a set of conditions known as the Bill of rights, which
encompassed provisions like the Crown had no power to suspend the operation
of law and taxation could only be levied on consent of the parliament
o It also asserted that England could have no standing Army and that
parliamentary debates couldn't be questioned by the monarch or any courts.
o Act of Settlement 1701 gave permanent Tenure to judges
o The modern conceptions of government, a parliament with supreme political
authority and an executive subservient to the parliament and a judiciary free
from all pressures was established by the end of the 17th centurỵ.
Statutes:
 Earlier it was any decree issued by the monarchy and later it slowly became the nor for
monarchs to consult the parliament before passing a decree (statute).
 It was in the reign of King henry VIII that the modern sense of statute came into being, a
bill passed by both houses and assented to by the king( or governor) and in this way
more than 700 statutes were passed in his reign
 Then the Glorious Revolution of 1688 led to the complete constitutional power being
assumed by the parliament.
The Common Law Procedural Reforms of 19th Century:
 Due to major upheavals caused due to the industrial revolution and some other factors,
the legal system underwent massive changes in the 19th century but private common
law was very slow to change eg used is that the old system of writs took centuries to
give way to the modern forms like the law of property, contracts and torts.
 The Uniformity of process act 1832 provided for actions to be commenced with a single
form of writ which only had to state the nature of claim in general terms unlike in the
past.
 The Common Law Procedure Act 1852 and the Chancery Procedure Act 1852 Simplified
the processes after the commencement of a claim
 The most Imp changes were brought by the passing of the judicature Acts of 1873 and
1875:
o All three common law courts were merged with the Court of Chancery to form
the Supreme Court of Judicature.
o The New Supreme court of Judicature had two parts i.e. the high court that was
a trial court and a Court of Appeal.
o The high court had 5 divisions :
i. Queen's Bench Division
ii. Common Pleas Division
iii. Exchequer Division
iv. Chancery Division
 v. Probate, Divorce and Admiralty Division.
o The most important advantage of this structure even though it looked similar to
the old system is that there was a common procedure and rules for all divisions.
o The second most Biggest achievement of this act is that it Provides for
Concurrent Administration of both Common law and also Equity. This fusion
allows for the use of both sets of law to be used to solve a matter as per the
discretion of the judge.

International Law
26 October 2022
21:14
 Critics Questions about International Laws:
a. They questioned the existence of a set of rules governing inter-national relations.
b. If there are such rules, can they be called "law"
c. If there rules, what is their efficiency in controlling states.
 Reasons for increase in momentum of this denunciation of International Law:
a. A number of states engaged in unlawful action without any consequences. Esp US
invasion of Iraq, Illegal Detention in Guantanamo Bay etc.
b. This led to strengthening of the belief that international law was failing in one of its
primary objectives i.e. protection of weaker states against arbitrary action of the
strong states.
 The author quotes some success like in East Timor and Kuwait while also pointing out many
failures and concludes that International law is like any national law and has both success
and failure but is still relevant.
 The author says that the comparison b/w National Law systems and International law is
wrong as they are designed to meet different objectives.
 National Law as per the author deals with the relation between rights and duties of citizens
and a legal superior (state) while International law has to deal with rights of states
themselves and any kind of legal superiority relation is undesirable.
The Role Of International Law
 It covers almost all actions taking place in the international arena and these rules are
primarily created by the states for their own purpose or for an org they a member in.
 International law facilitates relations, trade and treaties b/w sovereign states and also seeks
to control or inhibit states actions of the states towards other states (eg ban on the use of
armed force) and also in their actions towards their own nationals ( Human Rights Laws).
 The International law is transitioning from a system to facilitate relations b/w states to an
entity that is more engaged in the control of its subjects (states). - Highlight of the past 50
years.
The Existence of International Rules as a System of Law
 The author make the argument that international law as a system exists by pointing to the
fact that almost all states recognise this and also follow it to a large extent.
 Even when alleged violations occurred, even the states in contravention of laws did not deny
the existence of the law or claim to be above them but they instead tried to justify it using
some other international rule.
 Even when Instances of use of force occurred all states alleged them to be "Unlawful", NOT
merely "Unethical or Immoral" and when all parties that the law intends to regulate agree
with it there is no scope to doubt the existence of the law.
 The reasons to affirm that these set of rules is Actually "LAW"
 a. International law is practised in almost all foreign offices, by the government in
formulation of agreements etc and the national courts also cite international law as
a guiding factor in multiple instances. All international organisations also use lawyers
and law departments in their daily functioning and also all member countries agree
that they are ''Legally Bound' by the treaties and also pursue legal action against any
breaches of international Law.
b. Most States do not claim that they're above the law and try to justify all actions as
being in line with international law and this shows that states follow these rules as a
matter of obligation and not as choice.
c. Majority of international laws are actually obeyed and there are some instances of
violations but these are very rare and this goes on to prove that the states actually
treat international Rules as a proper system of laws.
d. The fact that international law lacks the institutions for the enforcement of its rules,
it does not cease to be law, instead it points out to the need to develop such
institutions for the development of international law to become par with national
law. Since International law deals with equals, and no one is superior, forced
enforcement might be detrimental as both states have some ability to inflict harm
on the other either military, economic or political and a mutually agreed upon
enforcement is better. In some aspects though International Law does enforce its
rules in matters like human rights etc and the European Human Rights Court, War
Crimes Tribunal for Bosnia and Rwanda are examples of such institutional
mechanisms.
The Enforcement of International Law.
 Many Jurists Claim that the hallmark of any system of law is its rules are enforceable against
breaches.
 National systems of law may seem more enforceable but is enforceability the binding
principle of international law, when one looks at national laws as being binding not because
they can be enforced but because they are widely accepted by the local population, the
validity of law may arise from the way it was created and in that sense international law is
very much valid as it stems as a result of Treaties and multi-lateral organisations.
A. The Security Council
o Points to the biggest fault of the security council, i.e. the veto powers of the big
five, often paralysing the functioning of the Security council.
o But also points out that at least on some issues like the Libyan bombings in
Lockerbie, Iraq's invasion of Kuwait, Montenegro etc the security council sanctions
worked.
o Also mentions that the primary objective of the Council is the maintenance of
peace and stability rather than the enforcement of international law, sometimes
the both overlap.
o Also emphasises on the importance of the co-operation between the Big 5 in order
for any resolution to pass, which also translates to no resolutions being passes
when one of the big 5 are involved.
B. Loss of Legal Rights and Privileges
o A method to ensure enforcement of international Bilateral agreements.
o If one state violates any agreement towards the other state, the other state can
resort to completely terminate the agreement, cut off diplomatic ties and even
announce trade and travel restrictions along with embargoes on the supply of
critical components etc.
o There is precedence of this step being taken repeatedly like in the case of UK and
Argentina after the Falklands War, US and Iran after the latter seized the former's
embassy in tehran etc.
 o This might be better than a show of military force and even though might not cause
any direct harm per se but will surely bring isolation towards the delinquent state.
o Because of the economic and political nature of this method, it can't be completely
be trusted to ensure enforcement but can be used to show international displeasure
at violations of good practices rather than at violations of law
C. Judicial Enforcement
o There are many judicial tribunals and ad-hoc tribunals being set up to deal with the
settlement of issues, the ICJ ( International Court of Justice) being the primary
Judicial Organ of the UN.
o Even though the ICJ is concerned primarily with the enforcement of international
rules and order, on the enforcement part it can only refer any deviation from its
binding orders to the security council for action and also faces all the problems of
the security council mentioned above.
o The procedure to enforce ICJ verdicts through the ICJ have never been succesfully
invoked, but the need to do so also arose very rarely as most states voluntarily
enforced the rulings.
o Also talks about If the ICJ has jurisdiction on cases already in discussion in the
Security council and comes to the conclusion that the court has interpreted its
powers as having jurisdiction on issues that are being discussed by the council
(Congo Case 2000) but having no Jurisdiction over cases where the council has taken
concrete measures (Libyan Arab Jamahiriya vs UK and USA 1992)
o Many specialised judicial Institutions like the Rwanda and Yugoslavia Tribunals are
shifting emphasis just from states to individuals in breach of international law and
the international Criminal Court are coming up, signalling a further strengthening of
International law .
o Many problems of international law come up in national courts and in most cases
these courts rule on matters of international law and then these rulings become
binding on parties and are most often complied with as any violation of a national
court's order by another national might cause rifts between nations which they seek
to avoid.
The Effectiveness of International Law

o Most rules of international laws are complied with in Daily lives, voluntarily by the States.
Reasons for the Effectiveness
a. The Common Good
o The most obvious reason for this compliance is the fact that these rules are based on mutual
benefit and goodwill and hence are beneficial to all states that follow them
o As the states become more and more independent, and the amount of international
interaction increases, a rules based international order is to everyone's benefit.
o Since International law provides a stable and authoritative platform for international
relations, it works.
b. The Psychological Rubicon
o When a law is accepted by most of the international Society, it gains legitimacy and any act
in violation of said law will be illegal.
o If the state is given an option between two courses of action, one legal and the other illegal,
it would take pressing reasons for the state to take the illegal route.
o In this sense the law has a psychological effect on the parties choosing the illegal path which
often makes states follow the law as much as possible.
c. The Practitioners of International Law
o The international Law is not just to be understood in terms of States and Govts but also in
terms of the many practitioners of this law at the foreign offices, international organs and
 Legal departments of Companies etc and most of these practitioners come trained in
national law and also treat international law equally and this leads to respect among very
important parts of the governments and organisations towards international law leading to
compliance.
d. The Flexible Nature of International Law
o International law is not adversarial in the sense that it is not rigid and does not force any
state into a corner.
o Many rules of the international law have been evolved from the national provisions of the
states and often do not stipulate rigid obligations.
o There may be ambiguity in some clauses and rules as in the case of territorial waters until it
was resolved in the 3rd UNCLOS but this ambiguity in case of international law provides
states with multiple courses of actions that are legal and hence helps avoid do or die
situations.
e. The Political Cost
o Apart from the economic and legal costs from sanctions, a state can also lose a lot of
political trust and goodwill due to a breach of international law.
o The loss of influence and trust may lead to reduction in trade, tourism, foreign aid etc which
might lead to major damage to the economy. And states may be unwilling to get into
agreements with delinquent states.
o Eg: USA lost goodwill after its attack on Grenada and its violations of the Vienna Convention
on consular relations against Germany and Paraguay.
f. Sanctions
o Sanctions will also contribute the compliance with International Law.
The Weakness of International Law
o International law is not a perfect system, it has its own weaknesses but the problem of lack
of modernisation occurs as most states believe that the current system is satisfactory and
hence there is no incentive bring about changes.
a. Lack of Institutions
o The lack of institutions for the creation and enforcement of laws is a real weakness in the
international law system. The lack of a body to create law such as a parliament is a major
setback as the traditional process of formulation of rules may be too slow in case of rapid
change in circumstances.
o Another problem with the lack of Institutions is that states may perceive the lack of any
action against them as an impetus to further violate laws as seen in the recent case in Iraq, it
might promote delinquency amongst states.
b. Lack of Certainty
o The problem with an open ended flexible set of rules is that there is scope for uncertainty
and sometimes it seems as if many of the disputes only arise due to this uncertainty.
c. Vital Interests
o In most legal systems, the interests of the subjects prevail over the dictates of the law and
international law is no exception and hence it is unrealistic to expect perfect obedience.
o If a state is faced with a choice between its vital interests and following international law,
the lack of an enforcement system makes it attractive for the states to breach the law
instead of failing to secure their vital interests.
o But even if a state responds in violation of international law to secure vital interests, the
response is very toned down as extreme violations might invite trouble.
d. Vital Rules
o Any system of law is judged based on its ability to uphold its vital rules, in case of national
law, it the prohibition of murder or any violence that can cause harm to the state and its
citizens and similarly in international law, it is to prevent outbreak of violence among states.
o In this regard international law has a very poor track record as it has failed multiple times to
curb the outbreak of violence and this is a valid criticism.
o But in case of national law the state has the power to overwhelm any act of violation of its
laws as the violator is often an individual or an organisation
o but in international law the consequences are far more reaching and sometimes even if an
attempt is made to forcefully enforce the rules, the forces of the aggressor maybe stronger
than the forces of the central authority and even if that is not the case, there will still be lot
of loss of life and property
o Therefore, forceful enforcement of international law may not be ideal.
The Juridical Basis of International law
a. The Command Theory
o John Austin's theory of Positive law states that a series of commands or orders issued by the
sovereign backed by the threat of sanctions can only be law. And since international law
does not satisfy the above criteria, it cannot be called as positive law.
o Austin's theory of law has now been discredited as the general description of law. His
definitions fails to even describe national law, let alone international law.
o The sovereign theory does not apply to international law because the aim of international
law is not to command or coerce the states but to promote free interaction through laying
out of principles.
b. The Consensual Theory
o