Gavin Howe
The common law system in England, which forms the basis of many legal traditions and principles in former colonies, has a long and complex history. It originated in the 11th century with the Anglo-Norman legal system that replaced Anglo-Saxon law following the Norman Conquest in 1066. Over the centuries, common law in England evolved through judge-made laws and precedents, with the first Year Books, or law reports, published in 1268. The influence of Roman legal principles is also apparent in the early treatises on English law. The development of common law was also shaped by the expansion of freemen and the decline of feudalism and manorialism, which led to the emergence of a central authority that guaranteed ordinary people's rights, as reflected in the Magna Carta of 1215.
| Characteristics | Values |
|---|---|
| Origin | Anglo-Norman legal system that replaced Anglo-Saxon law after the Battle of Hastings in 1066 |
| Historical Administration | King's courts |
| Development | Through judge-made laws and precedents in the Circuit courts |
| Publication | First published in the 19th century, The History of English Law before the Time of Edward I |
| Basis | Stare decisis, meaning "to stand by things decided" |
| Jurisdiction | England and Wales, Scotland, and Northern Ireland |
| Influence | Exported to British colonies, influencing the legal systems of the United States and other former colonies |
| Equity | Developed as a separate system administered by the Lord Chancellor to address the inflexibility of common law |
| Codification | Systematized and codified by Bracton in his treatise during the reign of King Henry III |
| Contrast to Civil Law | Provides judges with more discretion in deciding cases |
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What You'll Learn
Influence of Roman law
The influence of Roman law on the development of common law in England is evident in several ways. Firstly, it is important to note that Roman law had a significant influence on the legal systems of many countries, including those that were never directly ruled by the Romans. This influence extended well beyond the fall of the Roman Empire, with Roman legal institutions adapting to new conditions and incorporating non-Roman sources.
In England specifically, elements of Romano-canon law were present in the ecclesiastical courts and, to a lesser extent, through the development of the equity system. English common law, with its roots in Anglo-Norman legal traditions, also borrowed concepts directly from Roman law, particularly in the early 19th century. This occurred during a period when English lawyers and judges were open to adopting rules and ideas from continental jurists. The Latinate legal glossary used in English common law also reflects Roman influence.
However, it is worth noting that England did not fully adopt Roman law as the basis of its legal system, as was the case in many continental European countries during the same period. This was due in part to the relatively advanced state of the English legal system at the time, which reduced the perceived advantages of adopting Roman law. As a result, the English system of common law evolved in parallel with Roman-based civil law systems.
The influence of Roman law can also be seen in the broader context of England's colonial history. English common law was exported to and adopted by many parts of the British Empire, including the United States. Even after independence, former colonies continued to be influenced by English common law, and English decisions often remain persuasive in these jurisdictions.
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Development of case law
The development of case law in England, also known as common law, has a long and complex history. It emerged from the chaos of local customs and became the primary source of law for several hundred years.
In the 12th century, England transitioned from predominantly local, informal power arrangements to a formal government with bureaucratic structures. This shift laid the foundation for the development of common law, which was further influenced by Roman legal principles. Henry II's reign (1154-1189) played a pivotal role in this transformation, with the establishment of permanent royal courts, including the Court of Common Pleas, in Westminster.
The early development of case law in the 13th century can be traced to Bracton's "On the Laws and Customs of England". This treatise systematized and codified the emerging principles of common law, which had previously been based on unwritten customs and traditions. Bracton's work influenced the development of legal doctrines, concepts, and methods, and it set a precedent for future legal scholarship.
The Year Books, which were yearly compilations of court cases, began in 1268 and served as the law reports of medieval England. These reports provided valuable insights into the evolving legal landscape of the time, capturing the transition from customary law to a more formalized system.
Common law was deeply rooted in the concept of stare decisis, meaning "to stand by things decided". This principle ensured that courts followed precedents established by previous decisions, providing consistency and stability to the legal system. The decisions made in Royal justices in the Circuit courts, which evolved from the early medieval Itinerant courts, also contributed to the development of common law.
England exported its common law to its colonies, and even after independence, many former colonies retained the influence of English common law in their legal systems. This reciprocal influence can be seen in the adoption of English legal traditions and principles in jurisdictions worldwide, including the United States and other Commonwealth countries.
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Common law in the colonies
The common law, which originated in England following the Norman Conquest in 1066, was spread to the British Isles, Wales, Ireland, and overseas colonies. This system of law, which was common to all the king's courts across England, established a unified legal system, gradually replacing local folk and manorial courts.
After Britain's colonial period, jurisdictions that had inherited and adopted England's common law developed their own courts of final appeal. Those still under British rule are subject to the Judicial Committee of the Privy Council in London. Many former colonies that gained independence from British rule retained the common law system, and it continues to influence their legal systems today. A reception statute is a statutory law that a former British colony may adopt upon becoming independent, whereby the new nation accepts pre-independence common law to the extent that it is not explicitly rejected by the new legislative body or constitution.
The adoption of common law in the newly independent United States was controversial, with widespread distrust and hostility towards anything British in the aftermath of the American Revolution. Jeffersonians opposed the common law tradition, arguing for a legislatively enacted civil law under the control of the political process. On the other hand, Federalists believed that common law was the birthright of independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
Even after independence, many former British colonies in the Commonwealth, particularly Caribbean Island nations, continued to use the Privy Council as their final appeal court. This was because the Privy Council offered a readily available high-grade service.
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Outside the United States, parties in different jurisdictions often choose the law of England and Wales, especially when they are in former British colonies or members of the Commonwealth.
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Equity and the courts of chancery
The Court of Chancery was a court of equity in England and Wales, presided over by the Lord Chancellor and his deputies. It followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics, and the guardianship of infants.
The Court of Chancery was an extension of the Lord Chancellor's role as Keeper of the King's Conscience, and it was an administrative body primarily concerned with conscientious law. It had a far greater remit than the common-law courts and was far more flexible. The Court of Chancery was used by all walks of life, from labourers and bricklayers to peers of the realm. People turned to the court because it promised a merciful justice not bound by the strict rules of the common-law courts.
The Court of Chancery developed in the 15th century as a court of equity to provide remedies not obtainable in the courts of common law. Litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages was not sufficient redress for a trespasser occupying their land and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor in the courts of chancery.
In the 15th and 16th centuries, the Court of Chancery developed spectacularly at the expense of the common-law courts. However, by the early 16th century, the development of a system of precedent exercised a restrictive influence on the continued growth of equitable remedies. Although most of the early chancellors had been clerics, the later ones were usually lawyers who used the newly initiated reports of cases to begin shaping equity into an established set of rules. By the middle of the 17th century, the equity administered by the Court of Chancery had become a recognized part of the law of the land.
In the 1850s, attempts began to fuse the Chancery with the common law courts, and this finally succeeded with the Supreme Court of Judicature Act of 1873 and 1875, which dissolved the Chancery and created a new unified High Court of Justice, with the Chancery Division succeeding the Court of Chancery as an equitable body.
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Influence on American law
The influence of English common law on American law has been profound and wide-ranging. The United States' legal system is fashioned after the British legal system, and many fundamental principles, including those of tort law, can be traced back to English common law.
English common law, which originated in the practices of the English kings' courts following the Norman Conquest, was exported to the American colonies before the Revolutionary War. This system of law, based on judicial precedent and judge-made law, became the primary source of law in the colonies and, later, the independent United States. The principle of stare decisis, meaning "to stand by things decided", is a key aspect of common law and ensures uniformity and consistency in legal rulings. Both the US and England follow this principle, which means that American courts adhere to previous rulings in similar cases, just as English courts do.
The United States' criminal justice system is founded on the presumption of innocence, which is another aspect of English common law that has been adopted. In civil trials, both countries also share the same evidentiary standard, which is preponderance of the evidence. In the field of divorce law, most common-law countries, including some American states, follow the English model that allows judges to use their discretion in reallocating the property and income of spouses.
However, there are also differences between the two legal systems. For example, in the area of libel, US practice is less strict than English law, as public figures cannot sue for honest but unfair criticisms. Additionally, while contract law is similar in common-law countries, there are differences in the enforcement of contracts by third parties who are not actually parties to the contract.
Despite these differences, the influence of English common law on American law cannot be overstated. The legal traditions and principles established during the colonial period continue to form the basis of the US legal system today, even as both countries' laws have evolved independently over time.
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Frequently asked questions
Common law is a term with historical origins in the legal system of England. It is a body of law primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in stare decisis, meaning "to stand by things decided", where courts follow precedents established by previous decisions.
Common law developed in England as the country transitioned from local, informal power arrangements to a formal government in the 12th century. King Henry II established permanent royal courts, including the Court of Common Pleas, which became the primary source of law for several hundred years. The law was further developed through judge-made laws and precedents in the Circuit courts.
English common law was exported to British colonies and influenced the legal systems of many countries, including the United States. After independence, some former colonies continued to use English common law as a basis for their own legal traditions and principles.
