Anaya Nolan
The common law in England is a distinctive legal system that has been in use for several centuries. It is a set of rules used to solve problems and is based on judges' decisions and case precedents rather than relying on lawmaking codes. The common law was developed in feudal England, where most people could not read or write, and so disputes were taken to feudal lords to resolve. The term common law refers to the law that originated in the English royal court and spread until it became common throughout the realm, treating all persons equally as subjects of the king, regardless of class.
| Characteristics | Values |
|---|---|
| Origin | Developed in England following the Norman Conquest in 1066 |
| Influenced by William the Conqueror and his successors | |
| Influenced by Roman law and Canon law | |
| Influenced by customary law during Anglo-Saxon occupation | |
| Influenced by the Bologna revival of Roman law in the 12th century | |
| Earliest written record | Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), written between 1187 and 1189 |
| Basis | A common set of rules used to solve problems |
| Based on a history of judges' decisions and case precedents rather than lawmaking codes | |
| Verbal decisions and customs of landowners and nobles | |
| Reputation | Fairness in courts, protection of individual rights and private property |
| Applicability | Applicable to all subjects of the king, regardless of social class |
| Evolution | Still evolving to adapt to societal changes |
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What You'll Learn
Roman influence
The English common law system, though distinct from the civil law systems of other European countries, has been influenced by Roman law. Roman law was taught and studied in the 12th century by English lawmakers. For instance, they would have studied Justinian's Institutes, written in 533 AD during the reign of Emperor Flavius Anicius Justinian. The Institutes were an introductory exposition of the general principles of private law for students of law. The first passage, cupidae legum inventuti, translates to "to the young desirous of legal knowledge". The Institutes were an integral part of the Emperor's codification of Roman Law, which also included the Corpus Juris Civilis—a concise consolidation and integration of Justinian's own statutes, the statutes of his predecessors, and the writings of Roman jurists.
The influence of Roman law is apparent in the first treatises on English law. For example, the preface and introductory chapters of Ranulf Glanvil's treatise, Tractatus de Legibus et Consuetudinibus Regni Angliae (written between 1187 and 1189), are taken from the preface to Justinian's Institutes. Throughout the book, there are traces of influence from Roman rules, more or less adapted to the fabric of English law. In the 13th century, Bracton drew upon Roman law to fill in gaps in the common law. Roman law supplied a method of reasoning upon legal matters and a technical language to describe precise rules from vague customs and individual cases.
Roman law denoted the legal system applied in most of Western Europe until the end of the 18th century. It served as a basis for legal practice throughout Western continental Europe and in most former colonies of these European nations, including Latin America and Ethiopia. Roman law was also influential in Eastern Europe, especially in countries such as medieval Romania, which created a new legal system comprising a mixture of Roman and local law.
The influence of Roman law in England is also evident in the legal glossary of English common law, which is Latinate. Additionally, elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In the early 19th century, English lawyers and judges were willing to borrow rules and ideas directly from Roman law.
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Norman conquest
The Norman Conquest of 1066 was a pivotal moment in English history, marking the beginning of a new age and shaping the development of the common law in England. William the Conqueror, the Duke of Normandy, successfully invaded England, defeated King Harold II, and ascended the English throne. This conquest brought about significant changes in the political, economic, social, and legal landscape of the country.
One of the notable legal consequences of the Norman Conquest was the introduction of a centralised administration system. The Normans established several centralised institutions, the most prominent of which was the Curia Regis, or the King's Court. This court assumed wide judicial powers and played a crucial role in harmonising the diverse laws and practices that had previously existed under the Anglo-Saxon courts. The Normans retained certain elements of the Anglo-Saxon legal system, such as juries, ordeals, and the practice of outlawry, but they also introduced their own legal customs and traditions.
Prior to the Norman Conquest, England's legal landscape was characterised by local folk courts in various shires and hundreds. Additionally, urban boroughs, merchant fairs, and large landholders held their own courts as needed. The Anglo-Saxon law, particularly after the rule of Alfred the Great starting in 871 AD, resembled the legal practices of the Germanic peoples of northern Europe. Local customs played a significant role in governance, and the church also held considerable influence. Crimes were often treated as wrongs, and compensation was made to the victim.
With the Norman Conquest, the influence of Roman law, which had only been exerted indirectly through the church previously, became more pronounced in England. However, the revived Roman law had less influence compared to other regions under Norman rule due to the early sophistication of the Anglo-Norman legal system. The Normans did not have professional lawyers or judges; instead, literate clergymen acted as administrators, and some of them were familiar with Roman and canon law.
The common law in England evolved over centuries, gradually supplanting the local folk courts and manorial courts. It became known as "common law" because it was common to all the king's courts across England, establishing a unified legal system. The rule of stare decisis, or precedent, played a crucial role in shaping common law, as judges were required to follow past decisions and interpretations in similar cases. This promoted both uniformity and flexibility in the law. The influence of England's common law extended beyond its borders, impacting the legal systems of Wales, Ireland, and later, the colonies of the British Empire.
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William the Conqueror
The common law of England is a set of rules used to solve problems and is mainly based on a history of judges' decisions, rather than relying on lawmaking codes. It developed in feudal England, at a time when most people could not read or write, and disputes were settled by the local feudal lord. The common law of England has been influenced by Roman law, which was studied by English lawmakers in the 12th century. The first treatise on the common law of England was written between 1187 and 1189 by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II.
- The English people must revere one God and keep the peace between the English and Normans.
- Every freeman must swear an oath of loyalty to King William and protect his lands.
- Any Normans that William brought with him must be kept safe, and if any are murdered, the lord must seize the murderer within five days or pay a fine.
- Every Frenchman must pay what they call "scot and lot".
- Cattle can only be sold in a city with three credible witnesses.
- If a Norman accuses an Englishman of a crime, the Englishman can defend himself however he chooses.
- No man may be sold, and anyone who breaks this law must pay a fine to the king.
- All men are to uphold the laws of the land and any man who wishes to be considered a freeman must have a surety.
- Anyone who breaks the first law will be blinded and castrated, but not killed.
- Normans who arrived in England with William in 1066 will be safe.
William's laws were seen by the English as cruel and oppressive, and his attempts to appeal to the English, such as by learning their language, were not well received.
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Judges' rulings
The common law in England is built on a history of judges' rulings rather than lawmaking codes. The common law was called "the law of the land" because it constituted a body of rules about pieces of land. This was especially important in 12th-century England, where land was the most important form of wealth.
The reign of Henry II saw significant legal reforms, including the expansion of the system of travelling judges, the consolidation of courts, and the introduction of jury trials. Henry II also issued the Assizes of Clarendon, which provided instructions for justices on how to try criminal cases. He encouraged the use of juries, systematized the grand jury, and developed procedures for returning land that had been wrongfully seized.
The role of judges in the common law tradition was also influenced by William the Conqueror, who laid the foundations for the emergence of common law. William introduced feudalism, which shaped the system of government and legal customs in England. He contributed to the systemization and regularization of the law, enforcing royal rights that eventually evolved into the common law.
In summary, the development of common law in England was strongly influenced by judges' rulings, which were based on previous cases, adapted to changes in society, and contributed to a cohesive and equitable legal framework.
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Adapting to change
The common law in England has a long and complex history, evolving over centuries to adapt to societal changes. The following paragraphs will discuss the development of English common law and its ability to adapt to new requirements and societal needs.
The origins of English common law can be traced back to the Norman Conquest of 1066, when William the Conqueror laid the foundations for a unified legal system across the recently conquered Anglo-Saxon population. William introduced feudalism and grafted this system of government onto existing Anglo-Saxon legal customs, marking the beginning of the development of common law. This period also saw the reintroduction of Roman legal concepts, which had influenced the continent but declined in influence during the Anglo-Saxon occupation.
The 12th and 13th centuries were pivotal in the evolution of English common law, with significant contributions from King Henry II. Henry expanded the use of travelling judges, introduced legal procedures such as juries and writs, and consolidated the courts in England, making justice more accessible to his subjects. The first treatise on English common law, "Tractatus de Legibus et Consuetudinibus Regni Angliae" (Treatise on the Laws and Customs of the Kingdom of England), was written between 1187 and 1189 by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II.
The common law of England was distinct from the civil law systems of the time, as it focused on case precedents and judges' decisions rather than relying solely on written statutes. This flexibility allowed common law to adapt to changes in society and fill new requirements as they emerged. Over time, judges based their rulings on previous cases, creating a body of law that was accessible and applicable to all subjects, regardless of social class. This accessibility and fairness in the courts contributed to the reputation of English common law.
The evolution of English common law continued with the proliferation of writs and the establishment of royal courts, marking a transition from feudal law towards a more organized legal framework. By the late 13th century, the common law had laid the foundation for a cohesive legal system that reinforced the principle of equal treatment under the law for all citizens. This period also saw the decline in direct influence from Civil and Canon law on the development of English law, allowing for further adaptation and evolution of the common law system.
In conclusion, the common law in England has a rich history of adapting to change. It evolved from a system of verbal decisions and customs of landowners to a cohesive legal framework that ensured equal treatment under the law. The flexibility and adaptability of common law have been crucial in meeting the changing needs of society and ensuring fairness and justice for all citizens.
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Frequently asked questions
The Common Law in England is a distinctive legal system that developed following the Norman Conquest in 1066, under the influence of William the Conqueror and his successors. It is a set of rules used to solve problems and is mainly based on a history of judges' decisions and case precedents rather than relying on law-making codes.
The common law in England was influenced by Roman law, which was taught and studied in the 12th century by English lawmakers. The first treatise on English common law was written between 1187 and 1189 by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II. The reign of Henry II saw many legal reforms, such as the expansion of the use of travelling judges, the systematization of the grand jury, and the development of procedures for returning land to people from whom it had been wrongfully seized. By about 1200, the characteristic features of the common law were well established.
Civil law systems focus on written statutes, whereas the English common law system focuses on case precedents and the verbal decisions of landowners and nobles who adjudicated cases.
Statutes are laws written in books and passed by government authorities. In feudal England, most people could not read or write, so written statutes would not have been of much benefit. Instead, citizens took their disputes to feudal lords, who were expected to be consistent in resolving these disputes. As education became more commonplace, government authorities began to pass statutes to guide everyday life. Today, statutes are passed by various levels of government and are continually being amended, repealed, or replaced with new statutes to meet new requirements in society.
