Anaya Nolan
The common law tradition, also known as case law, is a legal system that originated in England during the Middle Ages. It is a body of law that is primarily developed through judicial decisions and precedent rather than statutes or codes. The term common law is often used in contrast to civil law, which has a more codified text for decision-making. The common law tradition expanded through English settlement and colonial expansion, influencing the legal systems of countries such as the United States, Canada, India, Australia, and those in the Commonwealth. However, the adoption of common law in these countries was not always a straightforward process and faced some controversies.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in England during the early and middle ages after the Norman Conquest of 1066. |
| Sources | The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. |
| Procedure | Common law is based on precedent, judicial rulings made in previous similar cases. |
| Reasoning | The form of reasoning used in common law is known as casuistry or case-based reasoning. |
| Contrast with Civil Law | Common law is often contrasted with civil law, which relies on codified texts for decision-making. |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Stability and Consistency | Common law promotes stability and consistency as outcomes are based on previous caselaw and not on subjective viewpoints. |
| Influence | Common law has influenced the legal systems of several countries, including the US, Canada, India, Australia, and New Zealand. |
| Marginalization | The traditions of common law have sometimes led to the unfair marginalization or disempowerment of certain groups. |
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What You'll Learn
The spread of common law to the US, Canada, India, Australia, and beyond
The common law system, also referred to as judge-made law or case law, is a body of legislation created by judges. It is a system of law primarily developed through judicial decisions rather than statutes. Common law originated in England following the Norman Conquest in 1066, and spread to Wales, Ireland, and overseas colonies.
Canada has separate federal and provincial legal systems, with each province and territory considered a separate jurisdiction with respect to case law. Legislation first introduced by the British is still in effect in Canada today, albeit in a modified form.
Similarly, India's modern judicial framework is largely derived from the British legal system, with legislation first introduced by the British still in effect in a modified form. During the drafting of the Indian Constitution, laws from Ireland, the US, Britain, and France were synthesised to produce a refined set of Indian laws. India's laws also adhere to UN guidelines on human rights and environmental law.
In Australia, the common law system was also introduced during the period of British colonisation.
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The influence of Roman law on common law
The common law, which originated in England after the Norman Conquest of 1066, draws on various influences, including earlier Anglo-Saxon traditions, local folk customs, and Roman law. While common law is often contrasted with Roman-derived civil law, the influence of Roman law on the development of common law is notable.
During the 12th and 13th centuries, when common law was taking shape, the rediscovery of Roman law in Europe exposed legal scholars and judges to Roman legal concepts. Many early common law scholars, such as Glanvill and Bracton, were well-versed in Roman law, often through their training in Roman canon law. One of the most significant treatises of common law, Bracton's "De Legibus et Consuetudinibus Angliae" ("On the Laws and Customs of England"), was heavily influenced by the division of law in Justinian's Institutes.
Procedural similarities between common law and Roman law are evident. In both systems, plaintiffs needed to obtain a document from a magistrate specifying the type of claim. This was the formula granted by the praetor in Rome and the writ granted by the Chancellor in England. Both the Roman Edict and the English Register of writs were regularly updated and allowed the state to control the types of disputes handled by state courts. Additionally, both legal systems divided legal actions into two stages: identifying the legal issue and then providing proof and deciding in favour of one party.
Categorisation of law is another area of influence. Both systems recognised two distinct bodies of law: traditional rules that were rigid and challenging to change, and a more flexible set of rules based on fairness and justice. In Rome, these were administered by the praetor, while in England, separate courts administered common law and equity.
Despite these influences, common law remained distinct from Roman-derived civil law. By the time Roman law was rediscovered, common law had progressed significantly, preventing a direct adoption of Roman law principles. While there are similarities, particularly with classical Roman law, there are also significant differences between the two legal systems.
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Common law in the Middle Ages
The common law, as a term, came into use in England during the early Middle Ages. It was so named because it was common to all the king's courts across England. The common law system developed in Britain after the Norman Conquest of 1066 and through the medieval period and Enlightenment, as kings consolidated political power and combined many of the justice traditions from various parts of the country.
The 12th and 13th centuries saw great strides towards the development of common law. During this time, the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) became established in Westminster, a suburb of London. Previously, the king's court had been itinerant, meeting wherever the king happened to be. The creation of these permanent institutions was part of a thorough reorganisation of royal justice, which expanded geographically throughout the country and socially across all classes. The doctrine of precedent also developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
The common law contrasted with the Civil Law traditions of continental Europe, which were based on theoretically comprehensive 'legal codes' and left judges with less discretion in deciding cases. Common law was deeply rooted in stare decisis, where courts follow precedents established by previous decisions. The form of reasoning used in common law is known as casuistry or case-based reasoning. The first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, were well-acquainted with Roman law, often being clerics trained in Roman canon law. Bracton's treatise, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of law in Justinian's Institutes.
The expansion of the common law tradition was facilitated by English settlement and colonial expansion, contrasting with the continental civil law world, where judges seek rules to ground their decisions in codified texts. The development of common law in the Middle Ages was also influenced by the Catholic Church, which operated its own court system that adjudicated issues of canon law, including what would today be regarded as family law.
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The development of legal theory in the 19th century
The 19th century witnessed significant developments in legal theory, with the emergence of new schools of thought and influential scholars. During this period, nationalism gained prominence, leading to the incorporation of lex mercatoria into local laws under new civil codes. The French Napoleonic Code and the German Bürgerliches Gesetzbuch became particularly influential in this regard.
One notable figure in the 19th-century legal philosophy was Jeremy Bentham (1748–1832), a renowned philosopher of law in the Western tradition. Bentham's writings, which underwent posthumous publication, offered a rigorous critique of common-law theory and posed fundamental questions about the very concept of common law. His work laid the groundwork for important developments in the 20th century.
John Austin, an English jurist, presented a simplified version of Bentham's philosophy, making it more accessible to a broader audience. Austin's tenure as the first professor of jurisprudence at University College London (1826-1832) was relatively obscure. However, his works, including "The Province of Jurisprudence Determined" (1832) and "Lectures on Jurisprudence" (4th ed., 1879), became standard texts in English legal education. These works played a pivotal role in the subsequent development of legal positivism and the philosophy of law.
In the late 19th century, scholars began to critically engage with Austin's positivism, and by the mid-20th century, a canonical refutation emerged. During this time, legal positivism flourished, with prominent figures like Hans Kelsen and H.L.A. Hart contributing influential theories. Additionally, "realist" schools of legal philosophy emerged in Scandinavia and the United States, adopting a positivist orientation while exploring distinct philosophical and practical questions.
The 19th century also saw the discovery and translation of ancient legal codes, such as the Codex Hammurabi, by British Assyriologists. This ancient Babylonian law, inscribed in stone by King Hammurabi around 1760 BC, was discovered in its most intact form in the 19th century and has since been translated into multiple languages.
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The relationship between common law and civil law
The common law, which originated in England after the Norman Conquest, is often contrasted with civil law, which is derived from Roman law. Common law is deeply rooted in stare decisis, meaning that it relies on judicial precedent and past rulings to determine new cases. In contrast, civil law takes the form of codified legal codes and statutes, and judges in civil law systems play a more limited role, applying the law to the case at hand.
Common law, also known as judicial precedent or case law, is a legal system where norms and understandings are recognised across a realm and institutionalised as law based on earlier judicial decisions. It is named as such because it was common to all the king's courts across England. The doctrine of precedent developed during the 12th and 13th centuries, as judicial decisions became based on tradition, custom, and precedent. Common law is primarily developed through judicial decisions rather than statutes, and judges in common law systems act as referees between two arguing lawyers.
Civil law, on the other hand, is derived from Roman law, specifically the Corpus Juris Civilis, and is heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices. It is characterised by the comprehensive codification of laws, with civil law codes stating the law in a coherent and comprehensive piece of legislation. Civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law secondary to statutory law, and judges in civil law systems act as investigators, with lawyers advising clients on legal proceedings and providing evidence to the investigative judge.
Despite the differences between the two legal traditions, there has been considerable cross-fertilisation of ideas. For example, the first common law scholars, such as Glanvill and Bracton, were well-acquainted with Roman law and were often clerics trained in Roman canon law. Additionally, common law countries may adopt certain aspects of civil law, such as the concept of trusts, which enable security interests to be held by a trustee in a syndicated loan situation without the need for formal transfer or re-registration of security interests.
In terms of geographical influence, common law systems are prevalent in former British colonies or protectorates, including the United States, Canada, India, and Australia. Civil law, on the other hand, is prevalent in South America (except Guyana), almost all of Europe (including Germany, France, and Spain), China, and Japan.
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Frequently asked questions
Common law expanded to the United States during the 17th and 18th centuries when Britain was colonizing North America.
Common law expanded to other parts of the world through English settlement and colonial expansion. Today, many countries continue to rely heavily on common law, including Canada, India, Australia, and New Zealand.
The English common law originated in the early Middle Ages in the King's Court (Curia Regis). It was further developed in Britain after the Norman Conquest of 1066 and through the medieval period and Enlightenment.
