Gavin Howe
Common law, a body of customary law, has been administered by the courts of England since the Middle Ages. Common law was institutionalized by Henry II in 1154, creating a unified system of law common to the country by incorporating and elevating local customs to the national level. This replaced the pre-Norman system of local customs and laws that varied in each locality, with a system that was common throughout the country. Common law is based on judicial decisions and reports of decided cases, and it forms the basis of the legal systems in the United States and most Commonwealth countries.
| Characteristics | Values |
|---|---|
| Origin | The common law system emerged in England during the Middle Ages, with roots tracing back to the late 1100s. |
| Definition | Common law is a "body of law" based on court decisions, judicial opinions, and precedents rather than codes or statutes. |
| Influence | It has directly influenced the legal systems in the United States, Canada, India, Australia, most Commonwealth countries, and partially in Scotland and Ireland. |
| Flexibility | Common law is flexible and adaptable to changes in society as higher courts can overrule prior decisions without waiting for legislative changes. |
| Efficiency | Common law systems save time and resources by following precedents, allowing for shorter court proceedings. |
| Predictability | The reliance on judicial opinions provides reasonably precise guidance, enabling parties to predict the lawfulness of their actions and encouraging commercial activities. |
| Criticism | Critics argue that it enables judicial overreach and that judges should narrowly interpret statutes without creating new laws. |
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What You'll Learn
The influence of royal power
Henry II, the first Plantagenet king, played a pivotal role in institutionalising common law. He created a unified system of law by incorporating and elevating local customs to the national level, thereby ending local control and variations in law across the country. Henry II's reforms standardised legal procedures and introduced consistency in the administration of justice.
One of Henry II's notable contributions was the establishment of the Grand Jury. This body, composed of local communities and royal judges, created a coherent system for prosecuting crimes. The Grand Jury, or the jury system as a whole, evaluated common local knowledge to reach verdicts, rather than solely relying on the presentation of evidence as in modern court systems.
The king's court, known as the Curia Regis, played a central role in administering royal justice. The Curia Regis included aristocrats and prelates who assisted in governing the realm. From this body, Henry II dispatched around 20 to 30 judges to hear disputes across the kingdom. These judges were instrumental in spreading and enforcing the king's laws, ensuring that the common law became the prevailing system throughout the country.
Additionally, the use of royal writs, or written orders from the king, was a key tool in initiating lawsuits and standardising legal procedures. These writs were purchased by freemen to start legal actions, particularly concerning property and inheritance disputes, and helped to undermine lordly power and establish modern property rights.
The expansion of royal power and the creation of a unified system of common law brought significant changes to the legal landscape of England. It replaced the previous system of varying local customs and laws with a more standardised and centralised approach, contributing to the development of the common law tradition that continues to influence legal systems in England and many other countries today.
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The role of precedent
In the context of common law, precedent refers to the previous decisions of judges in similar cases. Judges are expected to follow these precedents when making their own decisions, creating a sense of consistency and predictability in the law. This consistency is particularly important in commercial contexts, where parties can predict the legality of their actions in advance, allowing for more economically efficient contracts and greater wealth creation.
The reliance on precedent in common law systems has several advantages. Firstly, it provides efficiency, as judges need only consider previous rulings when making decisions, which can shorten court proceedings and save time and resources. Secondly, it offers adaptability and flexibility, as common law courts can address situations not originally predicted or covered by statutes. This is in contrast to civil law systems, where changes in statutes and codes may be required, which can be a lengthy process.
However, the role of precedent in common law is not without its criticisms. Jeremy Bentham, for example, argued against judicial lawmaking and in favour of codification and narrow judicial decisions. Despite this, the principle of stare decisis remains a fundamental aspect of common law, with judges across various jurisdictions, particularly common law countries like the US, Canada, India, and Australia, relying on precedent to guide their decisions and shape the evolution of the law.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law's evolution
The common law system as we know it today emerged in England during the Middle Ages, though its roots can be traced back to the late 1100s. At this time, England witnessed a transition from local, informal power structures to a more centralised system of governance. Henry II, the first Plantagenet king, played a pivotal role in institutionalising common law. He created a unified system of law by incorporating and elevating local customs to the national level, thereby eliminating regional variations and establishing a coherent set of norms across the country.
Henry II's reforms included the introduction of royal writs, which were written orders from the king used to initiate lawsuits. These writs were standardised and made available for purchase by any freeman, allowing royal courts to handle a diverse range of legal matters. Additionally, Henry II established the Grand Jury, which consisted of citizens sworn to investigate criminal accusations and civil claims by evaluating common local knowledge. This jury system, along with the emphasis on written documentation, peaceful dispute resolution, and a clear hierarchy of courts, marked a significant shift in the administration of justice.
Over time, the decisions of judges in common law systems began to be regarded as binding precedents. This development replaced the previous system of local customs and laws that varied across localities. The term "stare decisis," a Latin phrase meaning "to stand by things decided," encapsulates the principle that courts and judges should follow earlier decisions and rulings when dealing with similar cases. This consistency in judicial decision-making provided predictability and consistency, particularly for commercial parties, enabling them to assess the lawfulness of their actions in advance.
Common law continued to evolve and spread beyond England. It directly influenced the legal systems in Wales and Ireland, and most Commonwealth countries, including the United States. While the United Kingdom's legal system was once heavily influenced by common law, its integration into European Union (EU) law in 1973 introduced elements of civil law into domestic legislation. However, with the UK's exit from the EU in 2020, the country's legal landscape has once again evolved, showcasing the dynamic nature of common law and its ability to adapt to changing circumstances.
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The impact on commercial systems
Common law, a body of customary law based on judicial decisions and embodied in reports of decided cases, has been administered by the courts of England since the Middle Ages. Common law was institutionalised by Henry II in 1154, creating a unified system of law "common" to the country. This replaced the pre-Norman system of local customs and laws that varied in each locality.
Common law has had a significant impact on the development of commercial systems, particularly in countries that follow this legal tradition, including the United States, the United Kingdom, and other former British colonies or protectorates.
One key impact of common law on commercial systems is the emphasis on judicial decisions and precedent. In common law systems, judicial decisions are binding, and decisions by the highest court can generally only be overturned by that same court or, in certain cases, through legislation. This provides a level of stability and consistency that is particularly beneficial in commercial contexts, where parties can predict the legality of their actions and plan accordingly.
Another impact of common law on commercial systems is the concept of extensive freedom of contract. In common law systems, there is generally limited legal intervention in contracts, with few provisions implied into the contract by law. This allows parties significant flexibility in structuring their contractual relationships and permits almost everything that is not expressly prohibited by law. As a result, contracts in common law systems tend to be more detailed and comprehensive, as all the terms governing the relationship must be explicitly defined.
Common law systems also recognise the concept of trusts, which enables security interests to be held by a trustee for lenders in syndicated loan situations without the need for formal transfer or re-registration of security interests in the names of new lenders. This feature can be particularly advantageous in commercial funding arrangements.
Additionally, common law systems grant greater flexibility in granting different types of security over assets, which is another important aspect of commercial transactions. This flexibility allows for various structures and arrangements to protect the interests of the parties involved.
In summary, common law has influenced the development of robust commercial systems by providing stability, flexibility, and predictability. The reliance on judicial precedent, the freedom of contract, and the recognition of trusts contribute to a legal environment that supports commercial activities and economic growth.
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Common law in the modern world
Common law, a body of customary law based on judicial decisions, has been administered by the courts of England since the Middle Ages. Several countries, including the US, Canada, India, and Australia, continue to rely on common law when resolving legal disputes. Common law stands in contrast to civil law, which is widespread in continental Europe and elsewhere.
The common law system as we know it started in England during the reign of Henry II, the first Plantagenet king. Henry II centralised power by creating a unified system of law common to the country, ending local control and eliminating arbitrary remedies. He also reinstated a jury system, where citizens were sworn on oath to investigate reliable criminal accusations and civil claims.
The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, which is a distinguishing factor from today's civil and criminal court systems. Royal government centred on the Curia Regis (king's court), which was the ancestor of Parliament, the Star Chamber, and the Privy Council. Henry II also developed the practice of sending judges from his Curia Regis to hear disputes throughout the kingdom.
Common law is flexible and adaptable to unforeseen situations. It can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. Common law also provides efficiency, as judges need only follow precedent when making decisions, saving time and money. The reliance on judicial opinion is a strength of common law systems, contributing to robust commercial systems in countries like the United Kingdom and the United States. Parties, especially commercial entities, can predict whether a proposed course of action is likely to be lawful, allowing them to operate with greater freedom and economic efficiency.
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Frequently asked questions
Common law is a body of customary law based on court decisions rather than codes or statutes. It is administered by the courts of England since the Middle Ages and has evolved into the legal systems found in the United States and most Commonwealth countries.
Common law was institutionalised by Henry II in 1154. He created a unified system of law "common" to the country by incorporating local customs and eliminating arbitrary remedies. This was in contrast to the pre-Norman system of local customs and varying laws in each locality.
Judges play a significant role in common law systems as they are responsible for making decisions based on precedent. This means that court proceedings can be shorter, saving time and money. Common law is also adaptable and flexible, allowing courts to address situations not predicted by lawmakers and respond to changes in society.
