Gavin Howe
The common law tradition, including the United States and other countries historically tied to Britain, is one of the two major legal systems in the world. Common law, which originated in the practices of English kings' courts after the Norman Conquest in 1066, is characterised by its reliance on judicial precedent and interpretation. This tradition stands in contrast to civil law, which is derived from Roman legal codes and emphasises legislation designed to cover all eventualities. Common law uses case-based reasoning, applying written law to specific situations, and is often referred to as case law due to its reliance on detailed records of similar cases and statutes.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the practices of the courts of the English kings following the Norman Conquest in 1066. |
| Development | The common law developed in the King's courts through the use of precedent. |
| Judicial Decision-Making | The common law is firmly linked to government and judicial decision-making. |
| Case-Based Reasoning | The form of reasoning used in common law is known as casuistry or case-based reasoning. |
| Civil Cases | Common law, as applied in civil cases, compensates for wrongful acts known as torts, including intentional torts and torts caused by negligence. |
| Adversarial System | The procedure practiced in common law courts is known as the adversarial system. |
| Judicial Interpretation | Common law uses judicial interpretation to apply the written law to specific situations. |
| Precedent | A key element of common law is its reliance on and use of precedent, or stare decisis. |
| Case Law | Common law is frequently referred to as case law due to its reliance on detailed records of similar situations and statutes. |
| Judge-Made Law | Common law includes judge-made law, which allows judges to create new laws, duties, and doctrines that can bind everyone in the state. |
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What You'll Learn
Common law's origins
The common law tradition is a legal system that gives significant weight to judicial precedent and the style of reasoning inherited from English legal tradition. It is often contrasted with the civil law tradition, which is prevalent in countries with historical ties to non-British European powers, Russia, and some Asian countries. The common law tradition is deeply rooted in the history of England and its former colonies, influencing the legal systems of these countries even today.
The origins of common law can be traced back to the centuries following the Norman Conquest in 1066. Prior to this, England's legal matters were largely handled by local folk courts, urban boroughs, merchant fairs, and manorial and seigniorial courts. The Catholic Church also had its own court system for issues of canon law. The Norman Conquest marked a shift towards a more centralized system of royal justice, with the establishment of permanent royal courts, such as the Court of the King's Bench and the Court of Common Pleas in Westminster. This expansion of royal justice, initiated by King Henry II, aimed to create a unified legal system across the country.
The term "common law" refers to the law that was common throughout the country, as opposed to the diversity of regional or local laws that existed previously. This unified legal system gradually replaced the varying local customs and laws that had prevailed in different localities. The doctrine of precedent, also known as stare decisis, developed during this time, where judges were bound by the decisions of earlier judges in similar cases. This further solidified the uniformity of the law across the land.
The common law tradition also drew from various sources, including English common law principles, equity principles, Christianity, and ecclesiastical courts. It incorporated elements of Roman law, such as the divisions of actions into "in rem" and "in personam," which had a lasting impact on the legal system. Additionally, common law was characterized by an emphasis on written documentation, peaceful dispute resolution, the use of local juries, and a clear hierarchy of courts.
The influence of the common law tradition spread beyond England as it established its colonies around the world. Many former colonies, including the United States, adopted the common law system through reception statutes or judicial decisions. This expansion ensured that the common law tradition became a significant global legal system, shaping the legal landscape of numerous countries.
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Common law vs civil law
The world's legal systems are generally divided into two traditions: the Anglo-Saxon tradition of common law and the Latin/Roman tradition of civil law. There are around 150 countries that have civil law systems, while there are about 80 common law countries.
Common law, also known as case law, originated in England during the Middle Ages and was applied in British colonies across continents. It is characterised by its reliance on and use of precedent, or stare decisis, which means that past rulings are considered when deciding future cases. Common law is less prescriptive than civil law and is based on judicial interpretation to apply the written law to specific situations. It is adversarial, with the judge moderating between two opposing parties.
Civil law, on the other hand, is generally more prescriptive and is based on Roman law. It utilises legislation designed to cover every eventuality, with judges having a more limited role of applying the law to the case at hand. In civil law, the judiciary does not have the authority to invalidate legislative provisions. Civil law codes must be constantly changed because the precedent of courts is not binding.
Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States. In contrast, civil law is followed in countries with historical ties to other European powers, Russia, and many Asian countries with independent legal traditions.
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Common law in the US
The common law tradition is a legal system that originated in England following the Norman Conquest in 1066. It is characterised by the application of judicial decisions, custom, and precedent to guide future rulings, as opposed to relying solely on statutes. Common law is often contrasted with "civil law", which has its origins in Roman law and is prevalent in countries with historical ties to mainland Europe, Russia, and some parts of Asia.
The US common law system operates at both the state and federal levels. At the state level, legislatures may codify common law rules from their state courts, either to modify or expand upon them, or to replace them with new legislation. This interplay between common law and statutory law allows for a dynamic legal system that can adapt to changing circumstances and societal needs.
Federal common law, on the other hand, refers to rules created and applied by federal courts in the absence of a controlling federal statute. While most common law is found at the state level, federal common lawmaking is necessary to protect uniquely federal interests. This distinction between state and federal common law adds a layer of complexity and flexibility to the US legal system.
The adversarial nature of common law systems, where judges moderate between two opposing parties, has shaped the legal culture and practices in the US. It encourages a rigorous examination of arguments and evidence, with a focus on casuistry or case-based reasoning. This distinguishes it from civil law systems, which tend to be more investigatory in nature.
In conclusion, the common law tradition in the US, with its emphasis on stare decisis and the adversarial system, has played a significant role in shaping the country's legal landscape. While the US has adapted and built upon the foundational principles of common law, its influence can still be seen in the day-to-day workings of the American justice system.
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Common law in the English Renaissance
The common law tradition refers to a law that is derived from judicial decisions instead of statutes. It is often contrasted with Roman-derived civil law, which uses legislation designed to cover every eventuality, while common law uses judicial interpretation to apply the written law to specific situations. Common law systems are adversarial, with the judge moderating between two opposing parties.
During the English Renaissance, the common law was characterised by the "continuous persistence of medieval doctrine", according to legal historian Maitland. This continuity was attributed to the presence of collegiate groups—the Inns of Court—where English lawyers associated and learned. These Inns of Court served as ""schools of law", where young lawyers were taught and senior lawyers formulated a coherent repertoire of legal doctrine.
The 16th century saw a period of change in the law across Europe, including England. These changes were partly a reaction against the law's dependence on ancient Roman models or local Germanic custom, and usually took the form of a commitment to improved procedures, particularly the use of written procedures over oral ones. In England, the development of written pleadings and new, speedier remedies had a transformative effect, though the old customary law applied by the central courts at Westminster remained entrenched.
The influence of Roman law and canon law was still felt in England during the Renaissance, particularly through the clergy, who were often trained in these laws and appointed to judicial positions. The first treatises on English law, written in the late 12th century, show the influence of Roman legal principles, particularly in the work of 13th-century writer Bracton. After the end of the 13th century, the study of civil and canon law ceased to directly influence English law, but the ideas of Roman law continued to be taught at universities and influenced the thinking of English lawyers and judges.
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Common law and the role of judges
The common law tradition is a legal system used in several countries with historical ties to Britain, including the United States. It is characterised by its reliance on judicial decisions, customs, and precedents, rather than statutes, to create and apply the law. This is in contrast to civil law, which has its roots in Roman law and is used in countries with historical ties to other European powers, Russia, and some Asian countries.
Common law is often referred to as judge-made law, as it gives judges the power to create new laws and duties based on the specific circumstances of the cases they preside over. Judges interpret the written law and apply it to individual cases, using precedent or stare decisis to guide their decisions. This involves drawing on a history of judicial decisions to determine the most appropriate course of action for a given situation. The form of reasoning used in common law is known as casuistry or case-based reasoning.
The role of judges in the common law tradition is, therefore, a significant one. Judges are responsible for interpreting and applying the law, as well as creating new laws and precedents that can bind everyone in the country. This power to create new laws is a key distinction between common law and civil law systems. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions or act without a statute.
The common law tradition originated in England following the Norman Conquest in 1066. It was first used in the courts of the English kings, where it drew on earlier Anglo-Saxon traditions such as the jury and writs. Over time, the common law spread to other countries with ties to Britain, including the United States. Today, it continues to evolve through the decisions of judges and lawyers, who contribute to a growing body of legal doctrine.
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Frequently asked questions
The common law tradition is a system of law that originated in England and is now used in countries with historical ties to Britain, including the United States. It is characterised by its reliance on judicial decisions, customs, and precedents rather than statutes.
Civil law, derived from Roman legal codes, tends to utilise legislation designed to cover every eventuality. In contrast, common law uses judicial interpretation to apply the written law to specific situations. Common law systems are adversarial, with a judge moderating between two opposing parties, whereas civil law systems are investigatory.
Common law originated in the practices of the English king's courts following the Norman Conquest in 1066. The doctrine of precedent developed during the 12th and 13th centuries, and the law was institutionalised by King Henry II in 1154.
In the common law tradition, judges play a crucial role as they can create new laws and precedents based on the circumstances of the cases before them. This is known as judge-made law and forms a key part of the common law system.
Common law uses a procedure known as the adversarial system, where two opposing parties present their arguments before a judge. The judge then interprets and applies the relevant laws to the specific situation, relying on precedents and judicial decisions to guide their ruling.
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