Kara Sears
The legal systems in place today have origins that date back to ancient societies. Common law, for example, originated with England's monarchy in the early Middle Ages and is based on precedent, meaning that previous cases and judicial opinions determine how new cases are resolved. The common law system was adopted by each of the states and the national government after the American Revolution. The English common law also has roots in the US continent with the first English colonists who claimed the common law system as their birthright.
| Characteristics | Values |
|---|---|
| Origin | English monarchy |
| Basis | Precedent |
| Application | Civil cases |
| Principles | Custom and general principles |
| Sources | Case law |
| Adopters | Each state in the US after the American Revolution |
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What You'll Learn
Common law is based on precedent and custom
Common law is a body of unwritten laws based on legal precedents and customs established by the courts. It is also known as case law, which draws from institutionalised opinions and interpretations from judicial authorities and public juries. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
In the absence of an official legal code, common law relies on detailed records of similar situations and statutes. Judges presiding over cases determine which precedents apply. The decisions made by higher courts are binding on cases tried in lower courts, though lower courts can deviate from these precedents if they are outdated or if the current case is substantially different.
Common law originated with England's monarchy, and this type of legal system is based on precedent. It was developed by Henry II, who sent judges around the country to hear disputes and resolve them according to their interpretation of the customs. The judges would then return to London and discuss their cases and decisions with other judges, and these decisions would be recorded and filed. Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby judges were required to follow the decisions and interpretations of previous judges if the cases were similar.
This system of common law replaced the pre-Norman system of local customs and laws, which varied in each locality. The king's object was to preserve public order, and to generate revenue for the government through cases and fines. Common law, therefore, has its roots in ancient Anglo-Saxon customs, though it has evolved over time. Today, common law is practised in several countries, including the UK, US, Australia, Canada, Hong Kong, India, and New Zealand.
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It originated in England's monarchy
Common law, which originated in England's monarchy, is based on precedent. This means that previous cases and judicial opinions determine how new cases are resolved. This type of legal system stands in contrast to civil law systems, which are based on complying with enacted laws.
England's common law system can be traced back to the Norman Conquest of 1066, when William the Conqueror, a Norman, invaded England and introduced a number of legal concepts and institutions from Norman law. This marked a shift from the customary traditions of the Germanic Angle and Saxon tribes that had previously influenced English legal institutions. The Norman Conquest also resulted in the enhancement of royal political authority, with William creating and collecting a national tax and asserting that all feudal lords owed their ultimate allegiance to the king.
The development of common law in England continued during the medieval period, with judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This body of legal scholarship, first published at the end of the 19th century, includes The History of English Law before the Time of Edward I, which expanded on the work of 17th-century scholar Coke and 18th-century scholar Blackstone.
During the twelfth and thirteenth centuries, there was a trend toward centralized monarchical authority. In 1215, nobles, clergymen, and commoners rose up against King John, forcing him to accept the Magna Carta, which implied that the rule of law was higher than the king's will. This agreement also suggested that the nobility had a legal right to hold the king accountable to the laws of the nation.
By the thirteenth century, the monarchy had consolidated significant political and legal power, transferring it from feudal lords to royal courts and councils. This marked a shift in the administration of justice, with judges and juries becoming more independent and taking on distinct roles in the trial process. The jury, for example, became primarily responsible for deciding factual questions, while the judge acted as an umpire for questions of 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)
The US adopted common law after the American Revolution
The US legal system has its roots in ancient societies, with common law originating from England's monarchy. After the American Revolution in 1776, the adoption of common law in the newly independent United States was controversial. While there was widespread distrust and hostility towards anything British, including common law, some believed that it was their birthright, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
Massachusetts became the first state to establish an official Reporter of Decisions, and newer states often referred to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The United States federal courts relied on private publishers for law reports until after the Civil War, only publishing as a government function from 1874 onwards.
The Uniform Commercial Code (UCC) is a notable example of a codified framework within common law, governing commercial law. The UCC is considered one of the most significant developments in American law and has been enacted with local variations across all 50 states and US territories.
The US legal system has also been influenced by ancient Greek and Roman legal systems. Ancient Rome's foundation of law, the Twelve Tablets, established laws that are still reflected in modern legal systems. Similarly, the Code of Hammurabi in ancient Greece outlined statutes covering various aspects of life, including family relationships, contracts, inheritances, and crimes and punishments.
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The Code of Hammurabi influenced ancient law
The Code of Hammurabi is a collection of 282 laws and regulations written in cuneiform script on a seven-foot, four-inch stone monument. It was created by Hammurabi, the sixth king of the First Dynasty of Babylon, during his 43-year reign which ended in 1750 BCE. The code covers a wide range of topics, including family relationships, contracts, inheritances, and crimes and punishments. For instance, violent crimes often had penalties that matched the crime; if someone cut off another person's hand, their hand would also be cut off.
The Code of Hammurabi is notable for its influence on ancient law. It is the longest, best-organized, and best-preserved legal text from ancient Mesopotamia, a region between the Tigris and Euphrates rivers that includes modern-day Iraq, Kuwait, Turkey, and Syria. The code was discovered in 1901 in the ruins of the Elamite city of Susa, which is located in present-day Iran, and it has been studied for over a century.
The Code of Hammurabi is considered an ancient Mesopotamian system for solving disputes, punishing crimes, and regulating business practices. It was an early influence on the development of legal systems and courts over many centuries. The code's influence can be seen in later law codes such as the Middle Assyrian Laws, the Neo-Babylonian Laws, and the Mosaic Law of the Bible. These later law codes follow the same model as Hammurabi's code, providing people with an objective, universal directive on how to treat others and how one should expect to be treated in a civilized society.
The Code of Hammurabi also influenced the legal system in America. According to Kelly-Anne Diamond, an assistant teaching professor of history at Villanova University, the code depicts an ancient Mesopotamian legal system with principles that are still followed in American courtrooms. For example, the code includes what could be considered the earliest form of alimony payments, suggesting care and responsibility for marginalized groups.
Additionally, the Code of Hammurabi may have influenced the Covenant Code of Exodus 20:22–23:19 in the Bible. There are similarities between the two codes, including the casuistic format, principles such as "lex talionis" ("eye for an eye"), and content concerning a man-goring ox.
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Roman law is the foundation of civil law in many countries
Legal systems around the world have origins that date back to ancient societies. Civil law, in particular, has its foundation in ancient Roman law. This type of legal system is based on complying with enacted laws.
The foundation of Roman law was the Twelve Tablets, which contained an established set of laws. Some of the laws included in the Twelve Tablets are the requirement to appear in court if called upon, the punishment of death for lying in court, and a prohibition against holding business or political meetings at night. This system of Roman law was in place for more than 1,500 years.
Emperor Justinian was responsible for creating the Code of Justinian, a compilation of Roman laws that became the foundation of civil law in many modern countries. For example, in the 7th century, Eastern European law was influenced by Byzantine law, which was based on the Code of Justinian. English and Anglo-American common law were also influenced by Roman law, particularly in their Latinate legal glossary.
Colonial expansion spread the civil law system even further. Today, Roman law is no longer applied in legal practice, but the legal systems of some countries, like South Africa and San Marino, are still based on the old jus commune. Many rules deriving from Roman law still apply, and knowledge of Roman law is considered indispensable to understanding the legal systems of today.
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Frequently asked questions
Common law is a body of law based on custom and general principles embodied in case law, which serves as precedent and is applied to situations not covered by statute.
Common law originated in England in the early middle ages in the King's Court (Curia Regis). It was later adopted by the United States, where it was embraced by each of the states and the national government following the American Revolution.
The Code of Hammurabi, created by the first king of Babylon, is an example of ancient law. It includes a wide range of statutes covering family relationships, contracts, inheritances, crimes, and punishments.
Ancient Rome significantly influenced the legal systems in many countries today. Roman law, founded on the Twelve Tablets, formed the basis of civil law in many modern countries. Ancient Greece also influenced the judicial system in the United States, where people argued their cases without the representation of lawyers.
