Anaya Nolan
The common law of England, also known as the English common law, is a legal system that has been administered by the common-law courts of England since the Middle Ages. It is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. The common law of England was largely created in the period after the Norman Conquest of 1066, which introduced Roman legal concepts and institutions from Norman law to England.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. |
| History | Common law was created in the period after the Norman Conquest of 1066, which introduced Roman and continental ideas. It was further developed in the 12th and 13th centuries, with influences from Roman law and Canon law. |
| Jurisdiction | Common law is administered by the courts of England and Wales, one of three major legal systems within the United Kingdom. |
| Influence | Common law has influenced the legal systems of the United States, Commonwealth countries, and former British colonies. |
| Basis | Common law is based on stare decisis, following precedents established by previous decisions. It includes substantive and procedural rules. |
| Sources | Common law is derived from custom, precedent, and statutory legislation (Acts of Parliament, regulations, and by-laws). |
| Independence | The judiciary in the English legal system is independent, with foundational principles of fairness, equality before the law, and the right to a fair trial. |
| Evolution | Common law has evolved over time, with legal reforms and the influence of various cultural and historical factors. |
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What You'll Learn
The Norman Conquest
Edward died in January 1066 and was succeeded by his brother-in-law, Harold Godwinson. The Norwegian king Harald Hardrada invaded northern England in September 1066 and was victorious at the Battle of Fulford. However, Godwinson's army defeated and killed Hardrada at the Battle of Stamford Bridge just days later. On 28 September, William's invasion force landed at Pevensey in Sussex. William successfully invaded and killed Harold II, becoming the King of England by right of conquest.
The Conquest was a turning point in the legal history of England, as it laid the foundation for the common law system. The common law of England was largely created in the period after the Norman Conquest. Prior to the Conquest, Anglo-Saxon law governed most matters, with local customs and the church playing a significant role. Crimes were treated as wrongs, and compensation was made to the victim. While the Conquest did not immediately end Anglo-Saxon law, it initiated a period of change. Serious wrongs were now regarded as public crimes, and perpetrators were punished by death and forfeiture of property. The English Kings established centralised institutions, including the King's Court or the Regis Curia, which played a crucial role in the development of common law.
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Influence of Roman Law
Common law in England, also known as English common law, is a body of customary law based on judicial decisions and embodied in reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages.
The influence of Roman law on English common law is evident in several aspects. Firstly, Roman law served as the legal system in most of Western Europe until the end of the 18th century, and even longer in some regions like Germany under the Holy Roman Empire (963–1806). This prolonged influence allowed Roman law to shape the legal practices and principles across Western continental Europe, including England.
Secondly, while England did not adopt the wholesale reception of Roman law as other European countries did, it was still influenced by it. English common law, including that of Anglo-America, incorporated concepts and rules from Roman law, particularly in their Latinate legal glossary. This influence was more subtle and indirect, often mediated through the development of the equity system and the influence of Romano-canon law in ecclesiastical courts.
Additionally, during the early 19th century, English lawyers and judges demonstrated a notable willingness to borrow rules and ideas directly from Roman law and continental jurists. This period saw a blend of Roman law with elements of canon law and Germanic custom, particularly feudal law, resulting in a legal system known as Ius Commune or civil law in English-speaking countries.
The influence of Roman law extended beyond the legal realm. The Romans divided their law into two categories: jus scriptum (written law) and jus non scriptum (unwritten law). Written law encompassed not only legislation-derived laws but also laws based on any written source. In contrast, unwritten law referred to customs and traditions. This Roman classification system laid the foundation for the concept of "stare decisis" in English common law, which means "to stand by things decided". Courts in the English common law system follow precedents established by previous decisions, contributing to the robustness of commercial systems in England and the United States.
In summary, while England's common law developed independently and in parallel to Roman-based civil law, it nonetheless absorbed and adapted elements of Roman law. This influence shaped the legal landscape in England and contributed to the evolution of its unique common law system.
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Stare decisis
Common law in England, also known as English law, is a legal system that has been administered by the courts of England since the Middle Ages. It is deeply rooted in stare decisis, a Latin phrase meaning "to stand by things decided" or "let the decision stand".
The concept of stare decisis is essential to maintaining consistency and stability in the law. It provides predictability and certainty by ensuring that similar cases are decided in a similar manner. This promotes fairness and equality in the legal system, as it helps to avoid arbitrary or inconsistent rulings.
However, the application of stare decisis is not absolute and may be subject to exceptions. For instance, in a ""case of first impression" without a precedent or clear legislative guidance, judges are empowered to establish new precedent. Additionally, higher courts within a jurisdiction may overrule the decisions of lower courts, creating a new precedent for future cases.
In England and Wales, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. This power was previously held by the House of Lords until 2009. The Supreme Court is the final court of appeal for civil law cases, but criminal law cases in Scotland fall under the jurisdiction of the High Court of Justiciary, except for matters relating to devolution and human rights.
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English common law in the colonies
Common law in England, also known as English common law, is a body of customary law based on judicial decisions and embodied in reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages, following the Norman Conquest in 1066.
English common law was spread to the British Isles, first to Wales, and then to Ireland and overseas colonies. Many former colonies, including the United States, retain the common law system today. These common law systems give significant weight to judicial precedent and the reasoning inherited from the English legal system.
The legal system in the colonies was not always imposed, however. In the case of the original colony of New Netherland, the English allowed the Dutch settlers to retain their civil law. However, after the Dutch settlers revolted, the English recaptured the colony and imposed English common law on all colonists, including the Dutch.
A reception statute is a statutory law that a former British colony, such as Canada and Hong Kong, may adopt as it becomes independent. The new nation may accept pre-independence common law to the extent that it is not explicitly rejected by the new legislative body or constitution. This is often done because of the importance of an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state.
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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The three UK jurisdictions
The United Kingdom is a unitary state in international law, but it comprises three major legal systems: those of England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own distinct legal framework and court system, making it essential to understand the differences when navigating legal matters.
England and Wales
The jurisdiction of England and Wales is known for its common law tradition, which relies heavily on judicial precedent and case law to interpret statutes and deliver justice. The common law of England was largely created in the period after the Norman Conquest of 1066, gradually supplanting the local folk courts and manorial courts. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. In a ""case of first impression" with no precedent, judges are empowered to resolve the issue and establish new precedent.
Scotland
The Scottish legal system has remained distinct from English law despite Scotland becoming part of the UK over 300 years ago. The UK's highest civil appeal court, the Supreme Court of the United Kingdom, is the final court of appeal for civil law cases in Scotland, but not for criminal law cases, where the High Court of Justiciary has this power.
Northern Ireland
Northern Ireland has a separate legal system from Scotland, though both share Westminster as a primary legislature. The Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts in Northern Ireland.
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Frequently asked questions
Common law in England is the 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 Wales.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by Germanic peoples in northern Europe.
Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
Common law is based on judicial decisions and custom, whereas civil law is derived from legislation (Acts of Parliament and Statutory Instruments). Civil law can be clearer than common law when the legislature has addressed a precise set of facts applicable to a particular situation.
