Gavin Howe
The common law system, which forms the basis of the legal traditions of English-speaking countries, has its roots in England during the early Middle Ages. It emerged in the King's Court (Curia Regis) in Westminster, near London, and was influenced by Roman law, which was studied by English lawmakers in the 12th century. The Normans, who spoke French, brought with them their own customary law from Normandy, and the conquest of England in 1066 reintroduced continental ideas, including Roman legal concepts. The common law system in England has directly influenced the legal systems of its former colonies, such as Ghana and the United States, and partially influenced Scotland and Wales.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Location | Westminster, near London |
| Basis | Procedural remedies rather than substantive rights |
| Development | Largely created after the Norman Conquest of 1066 |
| Historical Influence | Influenced the legal system in Ireland and partially influenced Scotland |
| Modern Influence | Influenced the legal system in the United States and most Commonwealth member states |
| Roman Influence | Influenced by Roman legal principles, including Justinian's Institutes and Corpus Juris Civilis |
| Canon Law Influence | Influenced by Canon law, which was applied in English church courts |
| Property Law | Influenced by the use of royal writs, which allowed freemen to initiate lawsuits over property disputes |
| Precedent | Decisions were recorded and formed a basis for future cases, known as stare decisis or precedent |
| Judicial Decisions | Based on a history of judges' decisions rather than lawmaking codes |
| Reputation | Known for fairness in courts and protection of individual rights and private property |
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What You'll Learn
The reign of Henry II
During the 12th century, England had numerous ecclesiastical and civil law courts, with overlapping jurisdictions resulting from the interaction of diverse legal traditions. Henry II played a crucial role in centralising and expanding the role of royal justice in England, establishing a more coherent legal system. He created permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, in Westminster, thereby ending the previous practice of holding court wherever the king was located.
Henry's reforms aimed to restore royal authority and reassert control over the Church, which brought him into conflict with his chosen archbishop, Thomas Becket. These reforms changed the relationship between the King, the Church, the State, and society. The growth of literate government and the use of written records also influenced the legal development during this period.
Henry's legal changes are considered to have laid the foundation for English Common Law. His itinerant justices, for example, influenced similar legal reforms in other regions. The Treatise of Glanvill, an early legal handbook published at the end of his reign, summarised the legal system that had evolved under Henry's influence.
Henry II inherited a challenging situation in England following a devastating civil war. He faced issues such as the decline in the King's income, unauthorised castles built by local lords, and a loss of control over coin mints. Henry's reforms were driven by a desire to restore order and rebuild the kingdom, presenting himself as the legitimate heir to Henry I.
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Clerics and the King's court
The English common law system emerged in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up in Westminster, near London. This court was composed of the advisers and courtiers who followed the king as he travelled around the country.
The clergy played a significant role in the early English legal system. The Normans, who spoke French, had developed a customary law in Normandy. They had no professional lawyers or judges, so literate clergymen acted as administrators. Some of these clergymen were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but Roman law was less influential in England than in other places, despite Norman dominance in government.
In the 12th century, England saw the establishment of permanent royal courts, including the Court of the King's Bench and the Court of Common Pleas, or Common Bench. This development was part of a broader shift across northwestern Europe towards formal government organised along bureaucratic lines. The Court of Common Pleas was a common law court that covered "common pleas", or actions between subjects that did not concern the king. It was created in the late 12th to early 13th century and served as one of the central English courts for around 600 years.
The common law of England was largely created after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules similar to those used by the Germanic peoples of northern Europe. Local customs governed most matters, and the church played a significant role in government. Over time, the king's judges would discuss their cases and decisions with other judges in London, and these decisions would be recorded and filed. This led to the development of the stare decisis rule, or precedent, whereby a judge was bound to follow the decision of an earlier judge in similar cases.
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Written records of common law
The English common law, which originated in the early Middle Ages in the King’s Court (Curia Regis), was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those used by Germanic peoples in northern Europe. Local customs governed most matters, while the church played a large part in government.
The twelfth century saw a shift across northwestern Europe from local, informal power arrangements typical of customary law to formal government organized along bureaucratic lines. In England, this shift occurred during the reign of Henry II (1154-89), when the permanent royal courts (the Courts of the King’s Bench and of Common Pleas) were established in Westminster, a suburb of London.
The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The first textbook of the new Common Law, known as Glanvill, was written around 1189 and described the writ of Mort d’Ancestor, a legal action concerning inheritance upon the death of one’s predecessor.
The next definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765–1769. In the United States, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law, which remains a classic in the field.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code. Common law evolves through a series of gradual steps, with precedents maintained over time through court records and historically documented in collections of case law referred to as yearbooks and law reports.
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The role of judges
In the early Middle Ages, England's legal system was governed by local customs and varied across localities. The king's judges travelled the country, resolving disputes based on their interpretation of local customs. Upon returning to London, they would discuss their cases and decisions with other judges, and these decisions were recorded and filed. Over time, a principle known as stare decisis, or precedent, developed, whereby a judge was bound to follow the decision of an earlier judge if the facts of two cases were similar. This gradually replaced the varied local customs with a system that was common throughout the country, i.e., common law.
The 12th century saw a shift towards more centralised power and the establishment of permanent royal courts in Westminster, near London, during the reign of Henry II. This period also saw the emergence of the first treatises on English common law, such as the Tractatus de Legibus et Consuetudinibus Regni Angliae (Treatise on the Laws and Customs of the Kingdom of England), written by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II.
The development of common law in England was influenced by various factors, including Roman law, Canon law, and local customs. While Roman law was studied and taught in the 12th century, its direct influence on English common law is debated. The Norman Conquest of 1066 reintroduced continental legal ideas, including Roman legal concepts, and the influence of Canon law through the Christian church.
Judges played a crucial role in interpreting and applying these diverse legal influences to specific cases, shaping the evolution of common law. They had a degree of discretion in deciding cases, filling in gaps where written laws were silent or ambiguous, and contributing to the fairness and protection of rights that common law became known for.
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The influence of Christianity
Christian teachings and values also had a profound impact on the development of common law in England. The concept of justice and equality under the law, which is fundamental to the common law system, can be traced back to Christian ethics. The right to a fair trial before an impartial judge and a jury of one's peers in criminal cases is another example of how Christian principles influenced the legal framework.
Additionally, the Church of England has historically been intertwined with the English monarchy. The monarch's authority is linked to their communion with the Church, as stated in the British Constitution: "The Crown is held on condition that the holder should be in communion with the Church of England as by law established." This connection between the crown and the church has had a significant impact on the development of common law in England, as the monarch has played a crucial role in shaping the legal system.
Lastly, the endurance of common law through various historical events, including the establishment of a new religion under Henry VIII, further highlights the influence of Christianity. Despite changes in religion and other societal shifts, the fundamentals of common law, which were established during a predominantly Christian era, have remained resilient and continue to form the backbone of the country's legal system.
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Frequently asked questions
Common law began in England in the late 1100s, following the Norman Conquest of 1066.
The Norman Conquest of 1066 refers to the invasion and occupation of England by William the Conqueror and his successors. This conquest reintroduced continental ideas and Roman legal concepts to England.
English common law was based on a history of judges' decisions and case precedents, rather than lawmaking codes. It focused on written documentation, peaceful dispute resolution, and the use of local juries.
Henry II, who reigned from 1154 to 1189, played a significant role in the development of common law. He established permanent royal courts and expanded the use of traveling judges, making the law accessible to all subjects, regardless of social class.
The Magna Carta, established around 1215, opened a new chapter in English history by creating a system of constitutional government. It further solidified the principles of common law and guaranteed ordinary people's rights.
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