Kara Sears
English common law, which originated in the early Middle Ages, is a body of customary law based on judicial decisions and precedents. It stands in contrast to civil law, which is widespread in continental Europe and is a comprehensive, codified set of legal statutes created by legislators. Common law systems place great weight on precedent and are more malleable than civil law systems. They are also based on the principle of stare decisis, which means that judges are not absolutely bound by precedent but can reinterpret and revise the law without legislative intervention. This body of law has evolved over time to become the legal system found in the United States and most Commonwealth countries, influencing approximately one-third of the world's population.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) after the Norman Conquest in 1066. |
| Nature | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Development | Common law was developed by judges rather than legislators through the 19th century. |
| Influence | The English common law has influenced the legal systems of the United States, Commonwealth countries, and former British colonies. |
| Basis | Common law is based on judicial decisions, custom, and precedent. |
| Flexibility | Common law is more flexible than statutory law as it can be reinterpreted and revised without legislative intervention. |
| Evolution | Common law evolves gradually over time through a series of incremental changes. |
| Independence | The judiciary in the English common law system is independent. |
| Principles | Legal principles such as fairness, equality before the law, and the right to a fair trial are foundational to the English common law system. |
| Sources | Common law draws from institutionalized opinions and interpretations of judicial authorities and public juries. |
| Precedent | Common law places great weight on precedent, and the doctrine of stare decisis is applied. |
| Criminal Law | While most criminal law has been codified, some offences like murder remain common law crimes rather than statutory offences. |
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What You'll Learn
The origins of English common law
The Norman Conquest of 1066 significantly shaped the development of English common law. The traditional view, held by historian Frederic William Maitland, is that the Conquest was a "catastrophe" that determined the course of English law. This perspective emphasises the influence of Anglo-Norman legal traditions while downplaying the contributions of Anglo-Saxon customary law. However, there is evidence of Anglo-Norman courts relying on Anglo-Saxon rules and procedures in the late 11th century.
During the Angevin period, there was a move towards more routine royal administration of justice, closer ties between central government and localities, and increasing bureaucratisation. The 12th and 13th centuries witnessed influential changes in legal expertise, culminating in the rebellion against King John and the creation of the Magna Carta in 1215.
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How English common law differs from civil law
English common law, which originated in medieval England, is a body of unwritten laws based on legal precedents established by the courts. It is peculiar to England in its origin, and it is in contrast with Roman-derived civil law. Common law is derived from judicial decisions, whereas civil law is a comprehensive, codified set of legal statutes created by legislators.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the legal justice system. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
Civil law, on the other hand, takes the form of legal codes and is derived from Roman law and a compilation of rules issued by the emperor Justinian in the 6th century. It proceeds from abstractions, formulating general principles and distinguishing substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law. Civil law is often paired with the inquisitorial system, but the terms are not synonymous. Civil law is regularly updated, and its goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
Common law systems tend to give more weight to the separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. For example, in a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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The role of judges in English common law
English common law, which originated in the early Middle Ages, is a body of customary law based on judicial decisions and embodied in reports of decided cases. It was administered by the King's Courts across England, unifying the legal system and replacing local folk and manorial courts.
Judges in the English common law tradition are usually appointed through an appointive system, with appointments controlled by a Judicial Appointments Commission. They assume office for a limited probationary period before standing for "election" for a longer term. Their independence is a key principle, balancing democratic accountability.
Additionally, judges in common-law countries do not require prior judicial experience or even courtroom experience. They are typically lawyers who have practised law or been involved in law teaching or government legal service. Their role is to interpret and apply the law, ensuring fairness, equality before the law, and the right to a fair trial, which are foundational principles of the English legal system.
In an adversarial system, such as that used in common law courts, judges act as neutral arbiters, deciding cases based on the evidence and arguments presented by the two opposing sides. They generally do not actively investigate or reframe the issues but rely on the parties to frame the case and present their arguments.
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The influence of English common law globally
English common law, which originated in the early Middle Ages in the King's Court, has had a significant influence on legal systems around the world. It is characterised by its reliance on judicial decisions, case law, and customary law rather than statutory or civil law. This common law system, developed in England, forms the basis of the legal systems in the United States and most Commonwealth countries, which were formerly British colonies.
Many former colonies continue to recognise the authority of the Privy Council, applying English common law principles. Additionally, the legal system of Ghana, for example, is influenced by English common law, as evident in its constitution. The works of 17th-century English jurist Edward Coke, which collected and integrated case law, were influential in English and American legal education until the end of the 18th century and are still cited by common law courts globally.
The spread of English common law can also be attributed to the expansion of the British Empire and the establishment of colonies. As the Empire extended its influence, it brought with it the English legal system, supplanting local folk and manorial courts. This resulted in the widespread adoption of common law in various parts of the world, including Wales, Ireland, and overseas colonies.
Furthermore, English common law has influenced international conventions, particularly in areas such as shipping and maritime trade. International treaties like the European Union's Treaty of Rome or the Hague-Visby Rules have had an impact on English law when adopted and ratified by an Act of Parliament. However, Britain's relationship with international law is dualist, requiring the formal ratification and incorporation of treaties into statute before they become binding.
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The future of English common law
English common law, which originated in the early Middle Ages, has had a profound influence on the legal systems of many countries, especially former British colonies. This influence continues to be felt today, with approximately one-third of the world's population living in common law jurisdictions or mixed legal systems that integrate common law and civil law.
One key aspect of the future of English common law is the continued evolution of legal systems. While common law has traditionally been based on judicial decisions and precedent, there is a growing recognition of the need to adapt to new trends and interpretations. As noted by Oliver Wendell Holmes Jr., the law should not be bound by the past but should consider the context of the present and future, including advancements in statistics and economics. This suggests that English common law will continue to evolve and adapt to new social, political, and legal philosophies, ensuring that it remains relevant and responsive to the needs of the society it serves.
Another factor influencing the future of English common law is the increasing interconnectedness of the global community. With the world becoming increasingly globalized, legal systems are facing new challenges and opportunities for collaboration and harmonization. For example, international treaties and agreements, such as those within the European Union or the Hague-Visby Rules, can directly impact domestic law, including English common law. This integration of international law into domestic legal systems may lead to a greater alignment of legal principles and practices across jurisdictions, potentially influencing the development of English common law.
Additionally, the future of English common law may be shaped by changing social and political landscapes. As society evolves, new issues and challenges arise, requiring the legal system to adapt and respond. For instance, the development of new technologies and the emergence of new social norms may necessitate revisions to existing laws or the creation of new ones. Similarly, shifts in societal values and priorities, such as an increased focus on human rights or environmental protection, can influence the direction of English common law, leading to changes in legislation and judicial interpretations.
In conclusion, the future of English common law is likely to be characterized by continued evolution, adaptation, and integration. While the fundamental principles of common law, such as stare decisis and the importance of judicial precedent, are expected to endure, the specific laws and interpretations will evolve to meet the changing needs and values of society. The influence of English common law on legal systems worldwide underscores the importance of its ongoing development, ensuring that it remains a dynamic and responsive legal framework.
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Frequently asked questions
English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London.
Common law is a body of unwritten laws based on legal precedents established by the courts. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators.
Precedent, also known as stare decisis, plays a significant role in English common law. It refers to the history of judicial decisions that form the basis for evaluating future cases. Common law courts are not strictly bound by precedent but can reinterpret and revise the law when necessary.
Common law, or judge-made law, is primarily concerned with substantive rules and criminal law. Equity, which was administered by the now-defunct Court of Chancery, focuses on trusts and equitable remedies, adhering to the "maxims of equity".
English common law has greatly influenced the legal systems of former British colonies, including the United States, Canada, Australia, and India. These countries often adopted the English legal system during the colonial period, and many continue to use common law today.
