Cameron Miranda
English common law, which originated in the early Middle Ages in the King's Court, is a body of customary law based on judicial decisions and reports of decided cases. It is administered by the common-law courts of England and stands in contrast to the civil law system in Europe. Common law is often associated with judge-made laws of the King's Bench, while royal law refers to the law of the now-defunct Court of Chancery, focusing on trusts and equitable remedies. The emergence of formal government in the 12th century led to the establishment of permanent royal courts in Westminster, expanding royal justice across classes. Henry II played a pivotal role in institutionalising common law by creating a unified legal system, incorporating local customs, and reinstating jury systems. The development of common law was influenced by Roman law, which was studied by English lawmakers, and it gradually replaced local folk and manorial courts.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on judge-made law, judicial decisions, and precedent. |
| Royal law is based on the monarch's authority and the laws they enact. | |
| Development | Common law evolved from local customs and norms, gradually replacing local folk and manorial courts. |
| Royal law was established through the monarch's court, which created a unified legal system across the country. | |
| Influence | Common law spread throughout the British Empire and continues to influence the legal systems of many former colonies. |
| Royal law was influenced by Roman law, Canon law, and the legal traditions of the Norman conquerors. | |
| Focus | Common law emphasizes written documentation, peaceful dispute resolution, and the use of juries. |
| Royal law focused on maintaining order and consolidating power in the hands of the monarch and the central government. | |
| Jurisdiction | Common law jurisdictions give significant weight to judicial precedent and reasoning. |
| Royal law was subject to the jurisdiction of the monarch's court and the laws they enacted. |
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What You'll Learn
Royal writs vs. common law
The 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, London. The Anglo-Saxons, especially after the accession of Alfred the Great in 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 common law of England was largely created after the Norman Conquest of 1066. The 12th century saw a shift from predominantly local, informal power arrangements typical of customary law to formal government organized along bureaucratic lines. In England, this shift was marked by the reign of Henry II (1154-89), when the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster. Previously, the king's court had been itinerant, meeting wherever the king happened to be.
The creation of these permanent institutions was part of Henry II's thorough reorganization of royal justice, which expanded geographically and socially, across all classes from freemen to the highest-ranking nobles. The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be called the 'Common Law'.
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. In its earliest form, a writ was a written order made by the English monarch to a specified person to undertake a specified action. Writs could be purchased by any freeman to start a lawsuit against another party, for example, to recover property.
The common law developed around royal writs, with the choice of an inappropriate writ meaning the loss of the action. While there was no official register of writs for the medieval period, there were unofficial compilations of forms circulating in the legal community. The key writs were often credited with undermining lordly power and helping to create something more like modern property rights.
In summary, royal writs are formal written orders issued by the monarch or a body with administrative or judicial jurisdiction, while common law is a body of customary law based on judicial decisions and precedents, developed in England since the Middle Ages. Common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe.
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Influence on former colonies
English common law has had a significant influence on the legal systems of many of Britain's former colonies. During the colonial era, Britain exported its common law and statute law to most parts of its empire, including territories in America, Asia, Africa, and the Pacific. This process began in the 17th century, with the establishment of British trading posts and colonies in North America, the Caribbean, and India.
The British East India Company, for instance, brought English law to its trading posts and factories in India after 1757, and English common and statutory law were claimed as the sole legal system in colonies with significant European populations, such as the Thirteen Colonies in North America. In these colonies, local customs and laws were often disregarded, and the importation of African slaves required the implementation of new laws regulating master-slave relations.
In other colonies, such as those in Africa and Asia, British administrators recognised the need to adapt their imported laws to local circumstances, leading to a form of legal pluralism, where indigenous cases were handled according to local customary law. In practice, this meant that local judges would apply a combination of English common law and local customs, fostering the development of a localized common law jurisprudence.
Even after independence, the influence of English common law persisted in many former colonies. The Westminster system of parliamentary democracy, for example, served as a template for the governments of many former colonies, and the British Judicial Committee of the Privy Council still serves as the highest court of appeal for several former colonies, including several Caribbean nations. Additionally, international commercial contracts are often based on English common law, and jurisdictions that have kept to the common law may incorporate modern legal developments from England.
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Equity vs. common law
In the context of English law, "common law" refers to the judge-made law of the King's Bench. It is a body of customary law based on judicial decisions and embodied in reports of decided cases. Common law has been administered by the common-law courts of England since the Middle Ages.
Equity, on the other hand, is the judge-made law of the now-defunct Court of Chancery. Equity is primarily concerned with trusts and equitable remedies. It operates according to the maxims of equity and is not bound by precedent or strict legal rules, allowing judges to exercise discretion to administer justice in a particular case.
The Judicature Acts of the 1870s and 1880s amalgamated the courts into one Supreme Court of Judicature, which was directed to administer both law and equity. However, the reforms did not fuse the actual bodies of law, and jurisdictions that inherited the common law system differ in their treatment of equity. In England and Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law.
One of the major differences between common law and equitable rights lies in the deficiencies of common law remedies. Equity provides a remedy where common law provides none or provides a more suitable remedy. For example, in the case of AG v Blake, the House of Lords allowed an equitable remedy of account of profits for a breach of contract claim, where the common law remedy of damages would have been inadequate.
Another difference is the concept of trust. Courts of equity recognized the existence of a beneficiary and provided remedies for breach of trust, even when the common law had refused to do so.
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Roman law influence
English common law was influenced by Roman law, particularly in its adoption of a Latinate legal glossary. Romano-canon law was present in England's ecclesiastical courts and, to a lesser extent, through the development of the equity system.
In the early 19th century, English lawyers and judges were more open to borrowing rules and ideas from continental jurists and directly from Roman law. This was also true of thirteenth-century justices, who modelled their practices on those of Roman law jurists working in universities.
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. It was developed by judges rather than legislators and was based on procedural remedies rather than substantive rights.
The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be called the 'Common Law'. This term has been described as a body of judge-made law enforced and developed by the courts, which includes equity and admiralty law.
The influence of Roman law is also evident in the emphasis English common law places on written documentation, the peaceful resolution of disputes, the use of local juries, and a clear hierarchy of courts.
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Common law in the King's Court
The English common law system has its roots in the early Middle Ages in the King's Court, known as the Curia Regis. This court was set up in Westminster, near London, and served as the central royal court for most of the country. The common law of England was largely shaped in the period following the Norman Conquest of 1066, which reintroduced continental ideas and Roman legal concepts.
During the reign of Henry II (1154-1189), the royal treasury (the Exchequer) and permanent royal courts, including the Court of the King's Bench, were established. This marked a shift from the previous itinerant nature of the king's court, which had moved with the king. Henry II's reforms centralised royal justice, expanding its reach geographically and across social classes. He institutionalised common law by creating a unified system of law "common" to the country, incorporating local customs and eliminating arbitrary remedies. This included the reinstatement of a jury system, where citizens were sworn to investigate criminal accusations and civil claims.
The early development of common law was influenced by the legacy of Anglo-Saxon institutions and the norms of the time. Elements that persisted from the Anglo-Saxon system included the jury, ordeals or trials by combat, the practice of outlawry, and writs. Royal writs, or written orders from the king, were used to initiate lawsuits and address common legal cases, allowing the royal courts to handle a diverse range of legal matters.
The emergence of common law also coincided with the development of a centralised judiciary and the separation of church and state, with each maintaining its own legal and court systems. The Magna Carta, written during the reign of King John, further highlighted the class distinctions of medieval society and attempted to safeguard the rights of different classes.
Over time, the working out of procedural remedies in the King's Court evolved into the modern system, where substantive rights take precedence over procedure. Common law continued to be primarily developed by judges rather than legislators until the late 19th century. Today, common law jurisdictions or mixed legal systems that integrate common law are prevalent worldwide, with approximately one-third of the global population living under their jurisdiction.
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Frequently asked questions
Common law in Britain emerged 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 customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. Royal law, on the other hand, refers to the law made by the King and his officials.
Common law includes equity and admiralty law, and it has always been dependent on statutes. An example of common law is the doctrine of res ipsa loquitur, which was first applied in Byrne v Boadle (1863).
Britain exported its common law and statute law to most parts of the British Empire. Many former colonies, especially in the Commonwealth, continue to use the common law system today.
