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From the history of British Courts
Different countries develop their own form of dispute resolution, which is more fit for their culture and historical background. Prior to the Norman Conquest, there was no system of law which was common to England. Justice was administered locally. There was no English law as such. Rather, there was a variety of different regional system. During the reign of Henry II, judges were sent to the provinces where they could become familiar with local customs and could use their knowledge to develop a single law that was common to the entire country. Thus the system of courts and common law developed at Westminster and around the country by means of itinerant judges. That was a single system of law for the whole country: common law. This approach established the importance of judicial decisions as a source of law, though it was not truly formalized until the establishment of reliable system of case reporting in 1865.
The doctrine of precedent was based on the principles of stare decisis, obiter dicta and ratio decedendi according to which a later court is to be bound to apply the same reasoning as an earlier court where the two cases raise substantially the same questions of principle. The binding nature of the doctrine of precedent created a foundation of certainly. However, apart from certainly the law needs some flexibility.
By the 14th century, the common law had ceased to be flexible and failed to meet the demands of the new cases. More and more litigants who could not obtain redress from the common law would petition the King. Eventually, it was the Lord-Chancellor rather than the King who heard petitions. As the number of such petitions grew the Court of Chancery was established and equity developed as a system of justice distinct from the common law. Equity introduced a number of remedies unknown in the common law. This quite frequently allowed to seek such a remedy when all the common law remedies had been exhausted. At the same time equity was never a rival of the common law. It simply provided additional ‘alternative’ ways of achieving justice.
For example, the common law relied on a single remedy: damages. However this remedy was often found to be inadequate or inappropriate. Equity was able to develop a range of alternative, discretionary remedies.
For centuries, the system of law and equity were administered separately. The creation of a single organized system of courts in England dates back to 1873 – 1875 when the Judicature Act brought the two systems together so that all courts could grant both legal and equitable remedies. It should be noted that this was a procedural fusion of common law and equity, i.e. from that point all courts had both common law and equitable jurisdiction. As far as substantive law is concerned the two systems remain distinct. It established that where there was a conflict between the two systems Equity should prevail.
2. Find in the text above the English equivalents for the following key words and expressions:
- общее право
- право справедливости
- основанный на праве справедливости
- источник права
- судебное решение
- разрешение споров
- Канцлерский суд
- Акт о судоустройстве
- судьи, объезжающие округа, разъездные судьи
- отправлять правосудие
- создавать единую правовую систему
- добиваться судебной защиты
- добиться правовой защиты
- предоставлять правовую защиту
- подавать прошение, ходатайствовать
- рассматривать ходатайство, прошение.
3. Explain the meaning of the following legal terms:
2. case reporting
3. legal reasoning
4. equitable remedy
5. legal remedy
6. discretionary remedy
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