Keith Mack
The foundation of the legal traditions of English-speaking countries, British common law, or English law, is often contrasted with the Civil Law traditions of continental Europe. Historically, common law has been the foundation and prime source of English law, with statutory legislation being the most authoritative law. Common law is derived from societal customs and recognised and enforced by the judgments and decrees of the courts. It has been administered by the common-law courts of England since the Middle Ages, with the first legislative institution emerging under Edward I (1272-1307). During the colonial period, England exported its common law to most parts of the British Empire, influencing the legal systems of many countries today, including the United States, Canada, India, Pakistan, Bangladesh, and most member states of the Commonwealth.
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What You'll Learn
Common law's foundations in England
Common law in England has a long and complex history, dating back to the Middle Ages. It has served as the foundation and primary source of English law and has been exported to various parts of the world, including former British colonies.
One of the earliest influences on English common law was the Anglo-Norman system, which emerged during the Norman dominance in government. This system was sophisticated and adapted to local conditions, setting a precedent for the development of common law in England.
The reign of Henry II (1154-89) marked a significant shift towards formal government and the establishment of permanent royal courts in Westminster. Henry's reforms included the creation of the royal treasury (the Exchequer) and the Courts of the King's Bench and Common Pleas. This expansion of royal justice brought legal recourse to a wider range of social classes, beyond just the highest-ranking nobles.
The 12th century also saw the emergence of possessory assizes, or property law reforms, based on royal writs. These writs were brief written orders from the king, often in the form of fill-in-the-blank forms, that allowed any freeman to initiate a lawsuit, such as to recover property. The use of these writs helped to create something more akin to modern property rights.
Another important development during this period was the establishment of the Grand Jury by Henry II. This innovation created a coherent system for prosecuting crimes, combining the efforts of local communities with royal judges and central royal courts.
Over time, common law in England evolved to influence and be influenced by various legal traditions. It spread throughout the British Empire, leaving a lasting impact even after independence. For example, English common law continued to exert influence in the United States, as seen in the case of Byrne v Boadle (1863). Additionally, countries like India, Pakistan, and Bangladesh have legal systems largely based on English common law due to the legacy of British colonial rule.
In conclusion, the foundations of common law in England are rooted in ancient customs, royal authority, and the evolution of judicial institutions. It has shaped legal traditions worldwide and continues to be a significant aspect of the English legal system, often contrasted with statutory and regulatory law.
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Influence on former colonies
English common law has had a significant influence on the legal systems of its former colonies. During the colonial period, Britain exported its common law and statutory law to most parts of its empire. This included its trading posts along the Indian Ocean coast, settlement colonies in North America, South Africa, and Australia, and colonies of domination in Asia and Africa.
In the colonies, English law was adapted to local circumstances, and administrators recognised the need to integrate indigenous and British legal systems and values. This led to the development of a localized common law jurisprudence. For example, in North America, the importation of African slaves required the implementation of new laws regulating master-slave relations. In Australia, the colonizers adopted the practice of terra nullius, or nobody's land, ignoring native land claims and securing European land titles.
Even after gaining independence, many former colonies continued to be influenced by English common law. For instance, in the United States, English law prior to the American Revolutionary War still influences American legal traditions and principles. English decisions are usually persuasive in jurisdictions that have kept to the common law, and modern legal developments from England may be incorporated. Similarly, the Westminster system of parliamentary democracy has served as a template for the governments of many former colonies.
The British Judicial Committee of the Privy Council remains the highest court of appeal for several former colonies, including several Caribbean Island nations. The influence of English common law in former colonies has also extended to international commercial contracts, which are often based on English common law.
In addition to legal systems, British rule has left a lasting impact on other aspects of its former colonies, including language, sports, and religion. English is now the primary language of up to 460 million people worldwide, with approximately 1.5 billion speaking it as a first, second, or foreign language. Sports such as football, cricket, lawn tennis, and golf were exported and spread during the colonial period, while badminton, polo, and snooker were standardised or invented in former colonies like India. British missionaries spread Protestantism, including Anglicanism, to all continents.
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Common law vs civil law
Common law, which has historically been the foundation and prime source of English law, is often contrasted with the civil law traditions of continental Europe. Common law is a body of unwritten law that is administered by the King's courts and is derived from ancient usage. It is embodied in older commentaries and reports of abridged cases. Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples being France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch.
Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning of earlier decisions. It is a less prescriptive system, with fewer provisions implied in a contract. This means that all terms governing the relationship between the parties to a contract must be explicitly set out in the contract itself. Common law provides extensive freedom of contract, and generally, everything is permitted unless expressly prohibited by law.
Civil law, in contrast, relies on legal codes that function as the primary source of law. It is more prescriptive, with several provisions implied into a contract. In a civil law jurisdiction, a contract will be enforced by administrative courts unless the contract specifies that the parties have agreed to arbitration. Civil law is based on theoretically comprehensive legal codes and, in theory, leaves judges with less discretion in deciding cases.
Countries that follow a common law system are typically former British colonies or protectorates, such as the United States. After Britain's colonial period, many jurisdictions that had inherited and adopted English common law continued to use the Judicial Committee of the Privy Council in London as their final appeal court. English law has influenced the legal traditions and principles of many countries, including the United States, where each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law.
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Common law in practice
Common law, which has historically been the foundation and prime source of English law, is often contrasted with the Civil Law traditions of continental Europe. It is a body of judge-made law enforced and developed by the courts, which includes equity and admiralty law. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
In practice, common law is unwritten and administered by the King's courts, deriving from ancient usage and embodied in older commentaries and reports of abridged cases. Royal writs, or written orders from the king, were used to initiate lawsuits, allowing freemen to purchase writs to start lawsuits against another party, for example, to recover property.
Common law also overlaps with statutory and regulatory law, as some laws and regulations codify existing practices. Conversely, many statutes or regulations that are initially innovative eventually become incorporated into judicial precedents and customary understandings.
During the reign of Henry II (1154-89), the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. This marked a shift from local, informal power arrangements to formal government organised along bureaucratic lines. Henry II also established the Grand Jury, creating a coherent system for prosecuting crime based on cooperation between local communities and royal judges.
Common law was exported to most parts of the British Empire, influencing the legal traditions and principles of many countries, including the United States. Even after independence, English common law continued to exert influence, and jurisdictions that have kept to the common law may incorporate modern legal developments from England.
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Common law and international law
Common law, as the foundation of the legal traditions of English-speaking countries, is often contrasted with the Civil Law traditions of continental Europe. Civil Law is based on theoretically comprehensive legal codes, whereas common law is judge-made law, derived from ancient usage and embodied in commentaries and reports of abridged cases. Common law is based on precedent, with sitting judges applying statutory law and established principles derived from the reasoning of earlier decisions.
International law, on the other hand, is a set of rules and principles governing the relations and conduct of sovereign states with each other, as well as with international organisations and individuals. It includes concepts such as statutes, property law, and tort law, which are common in many Western domestic legal systems. The term "international law" was coined by Jeremy Bentham in 1789 to refer to relationships between states, but this has been criticised for its narrow scope. Lassa Oppenheim defined it as "a law between sovereign and equal states based on the common consent of these states", a definition largely adopted by international legal scholars.
The sources of international law are conventions/treaties, customary law, general principles of law, and judicial decisions/scholarly articles. Treaties are binding agreements between nations that govern the rights and obligations of participating countries. Customary law arises from patterns of behaviour in nations, with practices developing into international law when states follow them out of a sense of legal obligation. General principles of law are aspects of common law that are shared by most countries and, because of this familiarity, they also enter the realm of international law. Judicial decisions and scholarly articles rarely play a role in international law, except when the other sources of law are unclear.
Britain is a dualist in its relationship with international law, meaning that international treaties must be formally ratified by Parliament and incorporated into statute before they become binding. Common law has historically been the foundation and prime source of English law, but the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. Common law can be amended or repealed by Parliament.
English common law has been exported to many parts of the world, particularly during the colonial period. Many jurisdictions that gained independence from British rule have retained the influence of English common law, and English decisions are usually persuasive in such jurisdictions.
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Frequently asked questions
Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. It is administered by the common-law courts of England and has been since the Middle Ages.
England spread its common law across the British Isles, first to Wales, then to Ireland, and later to overseas colonies. Many former colonies, including Canada, Ghana, and Nicaragua, retain the common law system today.
Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Civil law, on the other hand, is based on comprehensive 'legal codes' that give judges less discretion in deciding cases.
