Gavin Howe
The common law of England was created in the period after the Norman Conquest of 1066. It originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London. The doctrine of precedent developed during the 12th and 13th centuries, as collective judicial decisions were based on tradition, custom, and precedent. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. During the Middle Ages, the English economy depended largely on agriculture, and land was the most important form of wealth. Political power was rural and based on landownership. The emergence of formal government and the development of common law in the 12th century saw a shift from local, informal power arrangements to formal government organized along bureaucratic lines.
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What You'll Learn
The transition from trial by ordeal to trial by jury
In the Middle Ages, common law in England (and Wales since 1536) was a body of customary law based on judicial decisions and embodied in reports of decided cases. This system directly influenced the legal system in Ireland and partially influenced Scotland's distinct legal system. The legal systems of most Commonwealth countries and the United States also evolved from this common-law system.
In the 12th century, the English criminal justice system relied on trial by ordeal, an ancient judicial practice that determined the guilt or innocence of the accused by subjecting them to painful, unpleasant, and often dangerous experiences. The two methods used most typically in England were trial by cold water and trial by hot iron. In a trial by cold water, a person was dunked into a cistern and declared innocent if they sank and guilty if they floated. In 1166, the Assize of Clarendon made trial by ordeal mandatory in certain criminal proceedings, such as robbery, thievery, and murder.
However, in 1215, the Fourth Lateran Council, led by Pope Innocent III, withdrew priestly cooperation in trials by fire and water, marking a transition to other methods of proof. England already had a jury of presentment, which determined whether a suspected person ought to be tried by ordeal, so the shift to jury trials was relatively swift. By the early 13th century, England had transitioned to a system where juries issued final felony verdicts. The records of these early jury trials suggest a quick process where the defendant had no counsel, and a jury of 12 men, sometimes acquainted with the defendant or victim, decided on guilt or innocence.
While trials by ordeal became rarer in the Late Middle Ages, they did not completely disappear until the 16th century and were even used in some 17th-century witch-hunts.
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The influence of Germanic tribes' social practices
The common law system, a body of customary law based on judicial decisions and reports of decided cases, has been administered by the courts of England since the Middle Ages. The legal systems of the United States and most Commonwealth countries evolved from this system.
The Germanic peoples were tribal groups who lived in Northern Europe and spoke Germanic languages. They had a significant influence on the Middle Ages and the development of modern Western culture. The Germanic tribes were diverse and migratory, with common linguistic and cultural roots, and dominated much of Europe during the Iron Age. When the Roman Empire weakened in the 5th century, the Germanic peoples migrated into Great Britain and Western Europe, settling and establishing fixed territories.
The Germanic tribes had a strong military, with warriors fiercely devoted to their leaders or chieftains. Their love of battle was linked to their religious practices, with two of their most important gods, Wodan and his son Thor, believed to be gods of war. The Germanic religion was polytheistic and pagan, with some underlying similarities to other European and Indo-European religions. It consisted of individual worshippers, family traditions, and regional cults within a broadly consistent framework. While there were unique practices among some tribes, there was also a degree of cultural uniformity concerning religion.
The Germanic tribes followed a strict monogamous culture, and adultery was severely punished. Tacitus notes that the penalty for adultery was left to the husband, who would cut off his wife's hair, strip her naked in front of their kinsmen, and flog her throughout the village. Polygamy was sometimes practised by those higher in the social hierarchy for tribal alliances. Germanic women were marked as women from the age of twelve, coinciding with puberty and marriage. Marriage offered security and improved social status. Germanic patriarchy is evident in the 7th-century Edict of Rothari of the Lombards, which stated that women had to be subject to a man and, if no one else, "under the power of the king".
The influence of Germanic tribes on social practices in the Middle Ages was significant, particularly in the transition from antiquity to the early Middle Ages. Their impact on warfare, religion, marriage, and social structure shaped the development of modern Western culture.
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The role of forgiveness and redemption
The common law system, which has its roots in the Middle Ages, is a body of customary law based on judicial decisions and court rulings, also known as caselaw. This system has been administered by the courts of England since the Middle Ages and has evolved into the legal systems found in the United States and most Commonwealth countries.
Forgiveness and redemption played a significant role in the medieval understanding of justice. Medieval English texts emphasised the redemptive potential of humanity and the belief that only God could truly judge a person's mind and heart. This notion of forgiveness was integral to achieving justice, as it recognised the complexity of judging another person's intentions and actions.
Medieval English law underwent a transition from a system of trial by ordeal to one dependent on juries for issuing final felony verdicts. The trial by ordeal, also known as the "judgment of God", involved methods such as trial by cold water or hot iron, where guilt or innocence was determined by divine intervention. The shift to trial by jury brought a more human-centric approach to justice, where the defendant's state of mind and intentions were considered.
The concept of felony in the 13th and 14th centuries carried a strong connotation of wickedness and unforgivability. However, low conviction rates during this period suggest a nuanced approach to judging guilt and innocence. The three essential elements of a felony crime were that it was reasoned, not committed by necessity, and wickedly intended. The consideration of these factors allowed for the potential for forgiveness and redemption to be acknowledged within the justice system.
The exploration of medieval law and the role of forgiveness and redemption provides valuable insights into the development of modern legal systems. By understanding the transition from trial by ordeal to trial by jury, and the evolving notions of crime and punishment, we can appreciate the complexities of justice and the ongoing pursuit of fairness and redemption in legal systems worldwide.
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The defendant's state of mind
The common law system, as we know it, started in England during the Middle Ages. It is a body of customary law based on judicial decisions and reports of decided cases. Common law stands in contrast to civil law, which is derived from codes and statutes. The English common law system has directly influenced the legal systems in Ireland and partially influenced Scotland's distinct legal system. Many countries around the world, including the US, Canada, India, and Australia, continue to rely on common law to resolve legal disputes.
During the Middle Ages, the English legal system underwent a transition from trial by ordeal to a system dependent on juries to issue final felony verdicts. This transition occurred after the Fourth Lateran Council in 1215, when the Catholic Church withdrew priests from administering trials by ordeal. The two most common methods of trial by ordeal in England were trial by cold water and trial by hot iron. For example, in a trial by cold water, a person would be dunked into a cistern, and if they sank, they would be declared innocent, while if they floated, they would be declared guilty. Medieval English texts emphasized the redemptive potential of humanity and the belief that only God could fully judge a person's mind and heart.
The idea of forgiveness also played a role in the medieval justice system. Juries thoughtfully approached the work of judging felony crimes, and the concept of redemption was central to their deliberations. While we cannot directly adopt their system of felony adjudication, we can learn from our common-law ancestors about the role of forgiveness in achieving justice.
In conclusion, the defendant's state of mind was a crucial aspect of the medieval English legal system. The transition from trial by ordeal to jury trials brought a new focus on the defendant's intentions and the concept of felony. The influence of religious beliefs and the emphasis on redemption and forgiveness further shaped the justice system of the time. Understanding these historical contexts provides valuable insights into the development of common law and the evolving nature of legal systems.
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The principle of stare decisis
The doctrine of stare decisis has both horizontal and vertical aspects. Horizontal stare decisis refers to a court adhering to its own previous decisions, while vertical stare decisis involves lower courts strictly following the rulings of higher or appellate courts within the same jurisdiction. The Supreme Court, for instance, may choose to uphold its earlier rulings unless there are "strong grounds" or a "particular rationale" to do otherwise.
The English jurist William Blackstone described the English common law precedent doctrine in 1765, stating that it established a strong presumption that judges would follow prior precedents to promote legal stability, unless such precedents were blatantly absurd or unjust. This doctrine served as the foundation for the idea of stare decisis in American jurisprudence in the eighteenth century.
The application of stare decisis aims to ensure even-handedness, predictability, and consistency in the development of legal principles. It fosters reliance on judicial decisions and contributes to the integrity of the judicial process. However, it is important to note that stare decisis is not an "inexorable command". Courts may choose to depart from precedent when prior decisions are deemed "unworkable or badly reasoned", especially in constitutional cases.
In conclusion, the principle of stare decisis plays a crucial role in maintaining stability and consistency in the legal system. By adhering to previous rulings, courts promote predictability and fairness in the application of the law. While stare decisis provides a framework for decision-making, it also allows for flexibility and discretion in exceptional circumstances.
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Frequently asked questions
Common law is a body of customary law based on judicial decisions and court cases that has been administered by the common-law courts of England since the Middle Ages.
The English common law originated 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.
The doctrine of precedent developed during the 12th and 13th centuries, as collective judicial decisions were based on tradition, custom, and precedent. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books.
Common law is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive 'legal codes' and leave judges with less discretion in deciding cases. Common law, on the other hand, is based on judicial precedent and customary law.
Roman law was studied by English lawmakers in the 12th century. While the influence of Roman law decreased after the Middle Ages, it laid the groundwork for a return of Roman law concepts in later centuries.
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