Cecily Zamora
The phrase common law refers to a body of law that originated in England in the centuries following the Norman Conquest of 1066. It was so named because it was common to all the king's courts across England, establishing a unified legal system that gradually replaced local folk courts and manorial courts. This system, also known as judicial precedent, judge-made law, or case law, is deeply rooted in the principle of stare decisis, which means that courts and judges are bound to follow the decisions and rulings of previous similar cases, or caselaw. Common law is adaptable and flexible, allowing it to address unforeseen situations and respond to changes in society. It forms the basis of the legal systems in the United States, the United Kingdom, and most Commonwealth countries, and continues to evolve and spread its influence worldwide.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the King's Court (Curia Regis) in the early Middle Ages, in the centuries following the Norman Conquest in 1066. |
| Name | The name "common law" comes from the fact that it was common to all the king's courts across England. |
| Development | Common law was developed through judicial decisions and precedents, with judges interpreting and applying the law, rather than through statutes. |
| Influence | Common law has influenced the legal systems of the United States, the United Kingdom, and most Commonwealth countries. |
| Flexibility | Common law is flexible and adaptable, allowing for interpretation and responding to changes in society. |
| Stability and Consistency | The reliance on precedent and previous case law promotes stability and consistency in the legal system. |
| Comparison with Civil Law | Common law contrasts with civil law, which relies on comprehensive codes and statutes, leaving less discretion to judges. |
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What You'll Learn
The Norman Conquest
Prior to the Norman Conquest, England's legal landscape was characterised by a variety of local folk courts, manorial courts, and individual courts held by urban boroughs, merchant fairs, and large landholders. The Anglo-Saxon legal system, which had been in place since the 5th century AD, was heavily influenced by local customs and the church. Crimes were often treated as personal matters, with compensation made to the victim, and the concept of 'moral guilt' was not a central consideration.
The influence of Roman law, which had been preserved in the Canon Law of the Christian Church, also increased following the Norman Conquest. This influence is evident in the treatment of crimes, which began to be regarded as public offences with 'moral guilt', rather than personal matters. The influence of Canon Law can be attributed to the fact that some clergy were familiar with it, and it was taught in the universities of the 12th century. Additionally, the language of official documents changed from Old English to Latin, further reflecting the growing influence of Roman and Norman legal traditions.
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Unification of English courts
The unification of the English courts has been a gradual process, with various reforms and acts of legislation contributing to the creation of a unified legal system.
Historically, England's legal system was fragmented, with various individual courts operating across the country. These included local folk courts, urban borough courts, merchant fair courts, and manorial courts held by large landholders. The Catholic Church also operated its own court system for issues of canon law. Following the Norman Conquest in 1066, French became the language of the courts, and legal terms were expressed in Latin.
The process of unifying the English courts began in earnest with the emergence of common law. Common law, so named because it was common to all the king's courts across England, originated in the practices of the English kings' courts following the Norman Conquest. It gradually supplanted the local folk and manorial courts, establishing a more unified legal system. The development of common law was influenced by earlier Anglo-Saxon traditions, including the jury, ordeals, the penalty of outlawry, and writs.
Over time, the concept of stare decisis, or precedent, emerged in common law. This meant that judges were bound to follow the decisions and interpretations of earlier judges in similar cases, creating a more standardised legal system across the country.
Reforms in the 1880s further contributed to the unification of the English courts. The Judicature Acts of the 1880s amalgamated multiple courts into one Supreme Court of Judicature, which administered both law and equity. This Supreme Court of Judicature was later renamed the "Supreme Court of England and Wales" in 1981 and then the “Senior Courts of England and Wales" in 2005 to distinguish it from the newly established Supreme Court of the United Kingdom.
In 2014, county courts in England and Wales were unified. Prior to this, county courts had local jurisdictions, but after unification, any county court could hear actions, and claims were frequently transferred between courts. The creation of a single Family Court with jurisdiction over all family cases in England and Wales further contributed to the unification of the English courts.
The benefits of court unification include reducing overlapping and fragmented jurisdictions, streamlining trial and appellate processes, and improving management and planning for the entire system. However, planning and implementing administrative unification is complex and time-consuming, requiring 12 to 18 months of lead time.
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Stare decisis
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts.
While stare decisis contributes to the integrity of the legal system, it may also result in the retention and spread of some instances that may have been incorrectly decided. There are cases where decisions have been made arbitrarily, and because of stare decisis, these cases will be given priority at the expense of a party that has been wronged.
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Influence on former colonies
English common law, which originated in the early Middle Ages in the King's Court, was spread to the British colonies. Many former colonies, including the United States, Canada, Australia, New Zealand, India, and Hong Kong, continue to retain the common law system today. The US common-law system specifically evolved from a British tradition that spread to North America during the 17th and 18th centuries.
The common law system was established in England following the Norman Conquest in 1066, gradually supplanting the local folk courts and manorial courts. England then spread this legal system across the British Isles, to Wales and Ireland, and later to its overseas colonies. The degree to which common law drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs, is still a subject of discussion.
The key feature of common law is its reliance on judicial precedent, also known as stare decisis, to guide decisions. This means that judges in common law systems are bound by the decisions and rulings of previous similar cases, known as caselaw. The flexibility of common law allows it to be adapted to unforeseen situations and to respond to changes in society.
The influence of common law on former colonies is evident in the stability and consistency it provides in their legal systems. The reliance on precedent ensures that outcomes are based on previous caselaw rather than subjective viewpoints. Additionally, the adaptability of common law allows former colonies to address unique situations that may not have been contemplated by the legislature.
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Common law today
Common law is a legal system that gives significant weight to judicial precedent, stare decisis, and the style of reasoning inherited from the English legal system. It is a system of law that is deeply rooted in precedent and stare decisis, which means "to stand by things decided". This means that judges are required to follow the decisions and rulings made by previous judges in similar cases. Common law is adaptable and flexible, allowing it to address unforeseen situations and respond to societal changes. It is based on case law, which involves detailed records of previous cases, and emphasizes written documentation.
Common law is practised in various countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. The United States and the United Kingdom have a dual system, incorporating both common and civil law. Common law originated in England during the Middle Ages, specifically in the King's Court (Curia Regis) in Westminster, near London. It was established after the Norman Conquest in 1066, gradually replacing local folk courts and manorial courts.
Today, common law continues to be a prominent legal system, influencing the decision-making process in unusual cases where existing statutes or written rules of law do not provide clear guidance. It is valued for its adaptability, allowing for interpretation and incremental adjustments to evolving social values. Common law promotes stability and consistency in the legal system, as outcomes are based on previous case law rather than subjective viewpoints.
The flexibility of common law is particularly relevant in the modern era, with the increasing influence of technology. The ability of common law to leave the legal code open for interpretation ensures that it can adapt to new situations and challenges that may arise due to technological advancements. This adaptability sets common law apart from civil law, which relies primarily on codes and statutes.
Common law has had a significant impact on the world, with approximately one-third of the global population living in common law jurisdictions or mixed legal systems that integrate common law and civil law. It has shaped the legal traditions of English-speaking countries and continues to be a dynamic and influential legal system in the modern world.
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Frequently asked questions
The phrase "common law" originated in the courts of English kings in the centuries following the Norman Conquest in 1066. It was named so because it was common to all the king's courts across England.
Common law is a body of unwritten laws based on legal precedents established by the courts. It relies on stare decisis, which means that judges need to follow earlier decisions and rulings when dealing with similar cases later.
Common law is practiced in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. Many former colonies also retain the common law system.
