Cecily Zamora
English law has been a common law system since 1189, which means that it is based on judicial precedents rather than a comprehensive codification of the law. Common law, which originated in England in the Middle Ages, is a system of law that is based on the decisions of judges and the precedents set by those decisions, rather than on statutory law or written codes. It is distinct from civil law systems, which are based on written codes and are prevalent in continental Europe. English common law has its roots in the Anglo-Norman legal system that was introduced following the Norman Conquest of 1066, which replaced the previous Anglo-Saxon legal system. Over time, English common law has been spread to other parts of the world, particularly to former colonies of the British Empire, and it continues to be a major influence on legal systems around the world today.
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What You'll Learn
Common law's historical origins
The common law system in England has a rich history that dates back to the Middle Ages. It is a legal system that is based on judicial decisions and precedents rather than a civil law system with written legal codes. The term "common law" refers to the law that originated in the English royal courts and gradually spread throughout the realm, treating all persons equally as subjects of the king, regardless of class.
The common law system in England has its historical origins in the Anglo-Norman legal system that superseded Anglo-Saxon law following the Norman Conquest in 1066. This conquest introduced a number of legal concepts and institutions from Norman law to England. The Normans, who spoke French, had developed a customary law in Normandy, administered by literate clergymen. While the revived Roman law was less influential in England, the early sophistication of the Anglo-Norman system played a significant role in the development of common law.
In the centuries following the Norman Conquest, the English common law system continued to evolve. By the 13th century, the characteristic features of common law were well established, with judges devising rules for dealing with precedent decisions. The early development of case law in this period was influenced by works such as Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as Year Books. These Year Books served as a principal source of knowledge for the evolving legal doctrines, concepts, and methods of the time.
The English Court of Common Pleas, established after the Magna Carta in 1215, played a significant role in the development of common law. This court tried lawsuits between commoners in which the monarch had no interest, and its judges' decisions formed the basis of common law for several hundred years. Over time, Parliament acquired legislative powers to create statutory law, which now coexists alongside common law in the English legal system.
The influence of the English common law system spread beyond England through colonialism and the expansion of the British Empire. Many former colonies, including the United States, retained the common law system, which emphasizes the role of judges in setting precedents and making decisions based on stare decisis, or prior court rulings. While the United States has moved towards a primarily statutory law system, common law remains influential, especially at the state level.
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The influence of the Norman Conquest
The Norman Conquest of 1066 CE, led by William the Conqueror, resulted in significant changes for both England and the Normans. The conquest saw the Norman elite replace the Anglo-Saxon ruling class, taking over the country's lands and restructuring the Church. William kept the framework of the English government but replaced most officials with Normans, and the language of official documents changed from Old English to Latin.
The conquest also led to the introduction of Anglo-Norman, a northern dialect of Old French with Nordic influences, as the language of the ruling classes in England, displacing Old English. Over time, the English language adopted thousands of new French words, and the syntax and vocabulary of English were influenced by French. This change occurred even among the illiterate peasantry, indicating that French was commonly spoken everywhere. The invasion also resulted in an increase in nucleated settlements and the spread of towns, with places like London, Southampton, and Nottingham attracting many French merchant settlers.
The legal system of England was also impacted by the conquest. Common law, which originated in the practices of the courts of English kings following the Norman Conquest, replaced the Anglo-Saxon legal system. This new system was characterised by judge-made law, with judges adapting the system of writs to meet everyday needs and applying a mix of precedent and common sense to create a coherent body of law. The degree to which common law drew from earlier Anglo-Saxon traditions is still a subject of debate.
The Norman Conquest had a profound impact on the culture, language, and legal system of England. The influence of the conquest can still be seen today in the form of Norman-derived English words and personal names, as well as in the English legal system, which continues to place significant weight on judicial precedent and common law.
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The role of judges and legislators
In the early centuries of English common law, judges played a crucial role in adapting the system of writs to meet everyday needs, drawing on a combination of precedent and common sense to create a coherent body of law. This process of judge-made law, also known as case law, was the primary source of law for several hundred years before the emergence of parliamentary legislative powers.
Judges in common law jurisdictions, such as the United States and Australia, continue to play an important role in setting precedents and making decisions based on stare decisis, which involves relying on legal precedents to decide cases. This is a key characteristic of common law, where judicial decisions are given more weight than written statutes.
While legislators have played a lesser role in the early development of English common law, the Parliament's acquisition of legislative powers marked a shift towards the creation of statutory law. Over time, the influence of legislators has increased, and today, common law can be amended or repealed by Parliament. In jurisdictions like the United States, while common law is important, statutory law is also of key importance, as judges uphold the laws created by legislators.
In summary, judges have traditionally been the primary drivers of English common law, interpreting and applying legal principles to individual cases, while legislators have gained prominence more recently, shaping the law through statutory enactments and amendments.
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The spread of common law
Origins in England
Common law, as we know it, originated in England following the Norman Conquest in 1066. This event marked the replacement of Anglo-Saxon law with the Anglo-Norman legal system, which formed the basis of common law. The term "common law" refers to the unified legal system that was common to all the king's courts across England. It gradually replaced local folk courts and manorial courts, establishing a more centralised and consistent legal framework.
Expansion Across the British Isles
England played a pivotal role in spreading the English legal system across the British Isles, first to Wales (as early as 1536), then to Ireland, and eventually to other parts of the British Isles. This process continued during the era of the British Empire, ensuring that the common law system took root in numerous colonies.
Influence on Former Colonies
Many former colonies, including those in North America, retained the common law system even after gaining independence. This is evident in the legal systems of countries like the United States, Canada, Australia, New Zealand, and India. These countries continue to give significant weight to judicial precedent and the reasoning inherited from English common law.
Global Reach and Variations
Common law has spread beyond the boundaries of the former British Empire. For example, Roman Dutch common law, a mixed system of law, is found in South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka, and Zimbabwe. These jurisdictions often recognise customary law and may require that common law be developed in harmony with a bill of rights.
Contemporary Global Presence
Today, common law jurisdictions or mixed legal systems that integrate common law and civil law cover approximately one-third of the world's population. This includes not only former colonies but also members of the Commonwealth. The influence of common law can be seen in the legal traditions of these nations, even as they adapt and evolve their legal systems to meet their specific needs and circumstances.
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Common law in modern times
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. 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 at Westminster, near London. It is distinct from civil law, which is the system of codified law that is prevalent in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law is concerned with tort, contract, families, companies, etc.
In modern times, common law still has practical applications in some areas of law, such as contract law and the law of torts. Common law is also still very much in effect in the US and elsewhere, and its ability to leave the legal code open for interpretation will become increasingly important as technology continues to evolve and grow. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Many former colonies, such as India, retain the common law system today.
In the United States, the First Amendment protects freedom of the press and allows for statements concerning public figures that may be of questionable veracity. In contrast, the UK's plaintiff-friendly laws mean that those same statements would support a judgment for libel. This relative weakness of protection for freedom of speech led the United States to limit the enforcement of foreign defamation judgments in the SPEECH Act of 2010, making England and Wales a less attractive forum for such cases.
In the late 19th and early 20th centuries, one of the major reforms was the abolition of common-law pleading requirements. This reform opened access to justice more broadly by allowing plaintiffs to initiate cases by providing defendants with "a short and plain statement" of facts constituting an alleged wrong. This shifted the focus of courts from technical scrutiny of words to a more rational consideration of the facts.
Common law has also played a role in shaping societal norms and values. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages. Feminists in the 19th and early 20th centuries who fought for women's rights faced difficulties due to such interpretations of common law.
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Frequently asked questions
Common law is a legal system based on judicial decisions and embodied in reports of decided cases. It is administered by the courts of England since the Middle Ages.
Civil law is based on a code of laws, such as the Code Napoleon developed in France. On the other hand, common law is based on the doctrine of precedent. Common law is derived from custom and precedent, and it originated with the legal reforms of King Henry II in the 12th century.
Early English law, or Anglo-Saxon law, was superseded and replaced by the Anglo-Norman legal system following the Battle of Hastings in 1066. This new legal system is what became known as common law.
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