Keith Mack
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that originated in England in the early Middle Ages. It is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. The English common law system, which was common to all the king's courts across England, came into existence in the centuries following the Norman Conquest in 1066.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the King's Court (Curia Regis) in the early Middle Ages, after the Norman Conquest of 1066. |
| Development | Common law was developed over several hundred years, primarily by judges rather than legislators, and based on judicial decisions and precedent. |
| Influence | The English common law system has influenced the legal systems of Wales, Ireland, and the British colonies, and, through them, the legal systems of member states of the Commonwealth. |
| Current Use | Common law continues to be the primary source of law in some jurisdictions, including the United States, where courts may consider the decisions of English courts. |
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What You'll Learn
Common law's origins
The origins of common law can be traced back to the early Middle Ages in England, specifically to the King's Court (Curia Regis) in Westminster, near London. This court, established by the English kings in the centuries following the Norman Conquest of 1066, created a unified legal system that gradually replaced local folk and manorial courts. The term "common law" refers to the fact that these laws were common to all the king's courts across England.
The development of common law was influenced by the expansion of royal justice in the late 1100s, which emphasised written documentation, peaceful dispute resolution, local juries, and a clear hierarchy of courts. This period also saw the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, and the Grand Jury, which played a crucial role in prosecuting crimes.
The early development of case law in the 13th century was influenced by works such as Bracton's "On the Laws and Customs of England". The yearly compilations of court cases, known as Year Books, provide valuable insights into the evolving legal doctrines, concepts, and methods of the time.
Common law, also known as judicial precedent, judge-made law, or case law, is deeply rooted in stare decisis, which means "to stand by things decided". It is based on following precedents established by previous judicial decisions, with judges empowered to resolve new issues and set precedents when no previous precedent exists.
The influence of common law spread beyond England, shaping the legal systems of Wales, Ireland, and later the British colonies. It also influenced the legal system in the United States, where common law principles were adopted and adapted to the local context.
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Common law in England
The English common law of the Middle Ages was largely procedural, focusing on remedies rather than substantive rights. Over time, this focus on procedure evolved into the modern system, where rights are seen as primary. The early development of case law in the 13th century can be traced to Bracton's 'On the Laws and Customs of England', which influenced the yearly compilations of court cases known as Year Books. These Year Books are a principal source of knowledge regarding the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law took on a recognisable form.
In England, judges have devised rules for dealing with precedent decisions, and common law has been deeply rooted in stare decisis ("to stand by things decided"). Judges follow precedents established by previous judicial rulings in similar cases. However, in cases of first impression without precedent, judges can establish new precedent. This judge-made common law operated as the primary source of law for several hundred years before Parliament gained legislative powers to create statutory law.
The United Kingdom, comprising England and Wales, Scotland, and Northern Ireland, has three distinct legal systems. While English common law has directly influenced the legal system in Wales (since 1536) and Ireland, it has only partially influenced Scotland's legal system. English common law has also spread to many Commonwealth nations, including Ghana, where it is enshrined in the country's 1992 Constitution.
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Common law in the US
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country in Westminster, near London. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had 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 the government. The English common law was largely created after the Norman Conquest of 1066.
The United States operates under a dual system of both common and civil law. The US common law rules were originally based on English common law. Every US state, except Louisiana, has a common law legal system. Louisiana's system is based on the French civil code that was in place before the US was formed. The Uniform Commercial Code (UCC) is an example of a codified framework governing commercial law that has been enacted in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
Common law is flexible and can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes. Higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so. Common law has been criticised for leading to the unfair marginalisation or disempowerment of certain groups. Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court and the procedures for handling claims and punishments for offences. Civil law is regularly updated, and the goal of standardised codes is to create order and reduce bias. In contrast, common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. While common law is largely based on precedent, it may incorporate certain statutes.
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Common law in the British Empire
Common law, also known as judicial precedent, judge-made law, or case law, is the body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". Here, courts follow precedents established by previous decisions. 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.
England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies. This was continued by the later British Empire. Many former colonies, including those that were once part of the British Raj, retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858, which set up the structure of British government in India. It established the office of the Secretary of State for India, the Governor-General of India, and their respective councils. As a result, the present judicial system of India and other countries that were part of the British Raj, like Pakistan and Bangladesh, derives largely from the British system and has little correlation to the institutions of the pre-British era.
After Britain's colonial period, jurisdictions that had inherited and adopted England's common law developed their courts of final appeal in differing ways. Jurisdictions still under the British crown are subject to the Judicial Committee of the Privy Council in London. For a long period, the British Dominions used London's Privy Council as their final appeal court, although eventually, they established their local supreme courts. Even after independence, many former British colonies in the Commonwealth continued to use the Privy Council, as it offered a readily available high-grade service.
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Common law's evolution
The evolution of common law can be traced back to the early Middle Ages in England, specifically to the King's Court (Curia Regis) in Westminster, near London. It was during this time that the foundations of common law, as a unified legal system, were laid, gradually replacing the local folk and manorial courts. The term "common law" refers to the fact that it was shared by all the king's courts across England.
In the centuries following the Norman Conquest of 1066, the English common law evolved and spread across the British Isles and later to the colonies of the British Empire. During the reign of Henry II (1154-1189), the expansion of royal justice led to the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas. This period also saw the emergence of written documentation, with a focus on royal writs, and the use of local juries to establish both law and fact.
The early development of case law in the 13th century was influenced by works such as Bracton's "On the Laws and Customs of England." This led to the publication of yearly compilations of court cases known as Year Books, which provide valuable insights into the evolving legal doctrines, concepts, and methods of the time. By the 17th and 18th centuries, judicial decisions and treatises, such as those of Lord Chief Justice Edward Coke, further contributed to the development of common law.
Common law has had a significant influence on the legal systems of countries beyond England, particularly those within the Commonwealth. For example, the United States has adopted certain aspects of English common law while also establishing its own principles and precedents. The integration of the United Kingdom into the European Union (EU) law in 1973 also influenced the domestic law of its constituent states, introducing elements of the civil-law tradition into the English common-law system.
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Frequently asked questions
Common law has been around since the Middle Ages, or the 1100s, in England.
Common law originated in the King's Court (Curia Regis), a single royal court set up near London.
Common law is the body of law developed through judicial decisions and embodied in reports of decided cases. It is based on precedent, where courts follow previous rulings in similar cases.
Common law is currently used in the United States and most member states of the Commonwealth. It has also influenced the legal systems of Ireland and Wales.
