Anaya Nolan
The common law system, a body of unwritten laws based on legal precedents established by the courts, can be traced back to England during the Middle Ages. It was influenced by the Norman Conquest, which brought customary law from Normandy, and evolved through the medieval period and Enlightenment as kings consolidated political power and combined justice traditions from various parts of the country. The doctrine of precedent developed during the 12th and 13th centuries, with judges following the decisions of prior judges and applying traditional or customary local laws. This flexibility allowed common law to address situations not originally contemplated by lawmakers and adapt to changes in society.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions, legal precedents, tradition, custom, and case-based reasoning |
| Sources | Plea rolls, Year Books, and other court records |
| Development | The common law system developed in Britain after the Norman Conquest, through the medieval period and Enlightenment |
| Influence | The common law system directly influenced the legal systems in the United States, Canada, India, Australia, and most Commonwealth countries |
| Flexibility | Common law is flexible and adaptable to unforeseen situations, allowing for interpretation and responding to changes in society |
| Efficiency | Judges only need to follow precedent, making court proceedings shorter and more efficient |
| Judges | Judges act as "referees" between adversarial lawyers, applying traditional or customary local law to specific cases |
| Juries | Juries play a central role in common law, with local citizens weighing the evidence and determining the facts |
| Statutes | Statutes provide guidance and boundaries for judges but do not provide complete answers to disputes |
| Equity | The system of equity, administered by the Lord Chancellor, developed alongside common law and took precedence in cases of conflict |
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What You'll Learn
Influence of canon law and maritime law
Canon law, or ecclesiastical law, is a set of ordinances and regulations made by church leadership for the governance of a Christian organisation or church and its members. Canon law includes internal ecclesiastical law or operational policy governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and individual national churches within the Anglican Communion. Canon law has influenced the development of modern civil law and common law. For example, the legislative style of Catholic canon law was adapted from the Roman Code of Justinian, and consequently, Roman ecclesiastical courts tend to follow the Roman Law style of continental Europe.
In the Church of England, ecclesiastical courts formerly decided matters such as disputes relating to marriage, divorce, wills, and defamation. Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England, the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes. Since the Reformation, ecclesiastical courts in England have been royal courts.
Doctors and civilians, as lawyers of canon law were called, were centred at Doctors Commons in London, where they handled probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century. Canon law continues to govern certain church-related matters, such as the discipline of clergy, alteration of church property, and issues related to churchyards.
Maritime law, or admiralty law, focuses on legal issues on water, such as injuries that occur offshore or on a vessel, and was shaped by international treaties. It was established by Queen Eleanor of Aquitaine, who learned about admiralty law while on the Second Crusade in the eastern Mediterranean with her first husband, King Louis VII of France. Eleanor established admiralty law on the island of Oléron, where it was published as the Rolls of Oléron. Later, while regent for her son, King Richard I of England, Eleanor instituted admiralty law in England as well.
Admiralty law was used as an alternative to the common law in Norman England, which required voluntary submission to it by entering a plea seeking judgment from the court. The doctrine of maintenance and cure is rooted in Article VI of the Rolls of Oléron, promulgated in about 1160 AD. The obligation to "cure" requires a shipowner to provide medical care free of charge to a seaman injured in the service of the ship until the seaman has reached "maximum medical cure".
Maritime law differs from common law in several ways. For example, jury trials are generally not available in traditional admiralty cases, and maritime law cases are typically bench trials, where a judge or arbitrator decides the case. Additionally, the standard of negligence is different between the two types of law. In a Jones Act Maritime case, an employer can be found negligent if their failure to provide a reasonably safe place to work played any part, even the slightest, in causing the seaman’s injury. In contrast, the standard for a Common Law case is the reasonable care standard, which requires showing that the employer or at-fault party failed to act as a "reasonably prudent" person would under similar circumstances.
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Development of the jury system
The jury system has evolved over time, with its origins being disputed. It may have been indigenous to England or introduced by the Norman invasion in 1066. Initially, jurors were neighbourhood witnesses who judged cases based on their personal knowledge. With the breakdown of medieval society and the growth of towns, the jury's role evolved, and they began to determine the facts of a case based on evidence presented in court. The English king Æthelred the Unready established an early legal system through the Wantage Code of Ethelred, which mandated that twelve leading minor nobles in each district swear to investigate crimes without bias. These early juries were self-informing, investigating cases independently rather than relying on trial information.
In the 12th century, Henry II played a significant role in developing the jury system. Over time, the jury trial replaced non-rational modes of trial, such as ordeals, becoming the standard for criminal and civil cases in common law. The jury system was further established in the American colonies, with the first jury trial taking place in Plymouth in 1630, where John Billington was found guilty of murdering a fellow colonist.
The Massachusetts Constitution, written in 1780, guaranteed the right to a trial by jury in criminal and civil cases. This was further secured with the ratification of the United States Constitution in 1788 and the Bill of Rights in 1791, which ensured the right to a jury trial in both criminal and civil matters. The Seventh Amendment of the U.S. Constitution specifically addressed jury trials, stating that in suits at common law, the right to a trial by jury shall be preserved, and facts determined by a jury shall not be re-examined.
The jury system in the United States has undergone some changes, with the genuine random selection of jurors becoming a principle of selection in federal and state courts. The United States Supreme Court ruled in 1968 that a jury trial is a constitutional right in criminal cases where the penalty may exceed six months' imprisonment. Today, failure to perform jury service can result in a criminal offence carrying a fine, and jury trials continue to play a significant role in American civil and criminal procedures.
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The role of the judge
In the early common law system, judges were influenced by various legal traditions, including canon (religious) law, maritime law, and local legal traditions. As the system evolved, judges became central to the justice system in common law countries, including Great Britain, the United States, Canada, and other present or former British colonies.
Judges in common law systems rely on case law and legal precedent to guide their decisions, in contrast to civil law systems, where judges follow a comprehensive code of statutes. This allows common law systems greater adaptability and flexibility, as they can address situations not originally contemplated by lawmakers and respond to changes in society.
The doctrine of precedent, or stare decisis, developed during the 12th and 13th centuries, further solidified the role of judges in common law. Judges began to follow the decisions of prior judges, especially those issued in higher courts through appeals, as guidance in their own rulings. This created a consistent body of law that evolved over time through judicial interpretation and application.
In summary, the role of the judge in the development of common law rules has been pivotal, shaping the legal landscape through their decisions, interpretations, and application of precedent. The common law system, with its emphasis on judicial precedent, has allowed judges to play a dynamic and influential role in shaping the law and adapting it to the changing needs of society.
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Influence of Roman law
The influence of Roman law on common law is a complex topic. Roman Dutch common law, a bijuridical or mixed system of law, is similar to the common law systems in Scotland and Louisiana. Many jurisdictions that follow Roman Dutch common law, including South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka, and Zimbabwe, also recognise customary law. During the Napoleonic Wars, the Kingdom of the Netherlands adopted the French code civil in 1809, but the British seized control of its colonies in the Cape of Good Hope and Sri Lanka (then called Ceylon) to prevent them from falling into French hands. The British then spread their legal system, which was influenced by Roman Dutch law, throughout Southern Africa.
In England, the Normans, who had developed a customary law in Normandy, brought aspects of Roman law and canon law to the country. Some of the Norman clergy, who acted as legal administrators, were familiar with Roman law and canon law, which was applied in English church courts. However, the revived Roman law was less influential in England than elsewhere due to the early sophistication of the Anglo-Norman system.
There are several similarities between Roman law and common law. In both systems, plaintiffs needed to obtain a document from a magistrate that identified the precise type of claim they were asserting. This was the formula granted by the praetor in Rome and the writ granted by the Chancellor in England. Both the Edict and the Register, which contained the various formulae, were continually updated, allowing the state to control the types of disputes handled by state courts. Additionally, both systems divided legal actions into two stages: the first for identifying the legal issue and the second for proving and deciding the issue.
Another similarity lies in the categorisation of the law. Both systems had two distinct bodies of law: traditional rules, which were rigid and difficult to change, and a more flexible set of rules based on fairness and justice. In Rome, these were administered by the praetor, while in England, they were administered by separate courts.
Despite these similarities, it is important to note that common law is relatively immune from Roman influence. There are significant differences between classical Roman law and common law, and direct comparisons between the two systems can lead to misunderstandings.
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Common law in the US
The development of common law in England was influenced by various factors, including the Norman custom and Roman law. The Normans, who spoke French, had developed their customary law in Normandy, which was brought to England but adapted to local conditions. Some of the Norman clergy were familiar with Roman law and the canon law of the Christian church, which also influenced the emerging English legal system. By the 12th and 13th centuries, when Roman law was rediscovered in Europe, the English common law had already established its own trajectory, preventing a full reception of Roman law as seen on the continent.
Common law was introduced to North America during the 17th and 18th centuries, through British colonial rule. Today, the US operates under a dual system of both common and civil law. Common law is particularly relevant in the courts, where it provides a flexible framework for adapting to new situations not contemplated by existing legislation. It is also evident in concepts like common-law marriage, which grants similar rights to unmarried couples as those with a marriage license under certain conditions.
At the federal level, US common law is influenced by the Constitution, Acts of Congress, treaties, and regulations from the executive branch. Federal courts can create common law rules in specific situations, such as protecting federal interests in foreign affairs or financial instruments. State legislatures also play a role in codifying and modifying common law rules to suit their specific needs, as seen in the example of the California Supreme Court's decision on independent contractors. However, the influence of common law has also led to marginalization and disempowerment of certain groups, requiring societal changes to prompt the evolution of legal interpretations.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law originated in Britain after the Norman Conquest and developed through the medieval period and Enlightenment. It was influenced by canon (religious) law, maritime law, and local legal traditions.
Common law spread through English settlement and colonial expansion, influencing the legal systems of the United States, Canada, Australia, New Zealand, India, and other former British colonies.
In the common law tradition, judges act as "referees" between adversarial lawyers, applying traditional or customary local law to specific cases. They follow the decisions of prior judges and use their judgments to guide future decisions.
Common law emphasises precedent while allowing freedom for interpretation, enabling the law to be adapted to new situations not contemplated by the legislature. This becomes increasingly important with the evolution of technology.
