Gavin Howe
English common law is a legal system that originated in the early Middle Ages in the King's Court, a single royal court set up for most of the country at Westminster, near London. It is based on unwritten law formed by previous court decisions and stands in contrast to civil law, which is based on a code of laws. English common law was developed in the centuries following the Norman Conquest in 1066, gradually supplanting local folk courts and manorial courts. It was largely created by judges and justices who adapted the system of writs to meet everyday needs, applying precedent and common sense to build up a body of internally consistent law.
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What You'll Learn
The origins of English common law
English common law, or the body of customary law, is 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 English common law system is based on unwritten law formed by previous court decisions. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions.
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. It did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure.
In the early centuries of English common law, justices and judges were responsible for adapting the system of writs to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. Writs were legal orders issued by courts in the name of the sovereign and addressed many different situations, including correcting injustices. King Henry II of England is sometimes referred to as the 'Father of Common Law' because of his legal innovations, which included expanding access to courts and promoting strong judicial institutions.
English common law has directly influenced the legal systems of Ireland, the United States, and most Commonwealth countries. It stands in contrast to the civil law system, which is based on statutory codes.
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How English common law developed
The English common law, which originated in the early Middle Ages, was created in the king's court (Curia Regis) in Westminster, near London. It was developed in the period after the Norman Conquest of 1066, which saw the Anglo-Norman legal system supersede Anglo-Saxon law. The Normans, who spoke French, had developed a customary law in Normandy, which was administered by literate clergymen. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than in other places.
In the 12th century, there was a shift across northwestern Europe from local, informal power arrangements to formal government. In England, this shift was embodied in the reign of Henry II (1154-89), when the permanent royal courts of the King's Bench and of Common Pleas were established in Westminster. The creation of these institutions was part of Henry's reorganisation of royal justice, which expanded across the country and across social classes.
The English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. Judge-made common law was the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. The early development of case law in the 13th century was influenced by Bracton's On the Laws and Customs of England, and the yearly compilations of court cases known as Year Books.
Common law, also known as judge-made law, case law, or judicial precedent, is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. It is based on judicial decisions and embodied in reports of decided cases. It is made by sitting judges who apply both statutory law and established principles derived from the reasoning of earlier decisions.
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The spread of English common law
English common law, which originated in the Middle Ages, has spread far beyond England's borders. It was first exported to Wales, then to Ireland, and later to the colonies of the British Empire, such as Canada, Australia, and Nigeria. Many of these places continue to use the common law system today, including the United States, which developed its own version of common law after gaining independence from the United Kingdom.
In the United States, for example, common law took on a distinct character, incorporating elements of civil law and developing unique practices such as common-law marriage, which grants couples the rights of marriage without formal registration. The influence of US institutions and culture further spread Americanised versions of English common law to other parts of the world, as seen in Nicaragua.
English common law also spread to pre-colonial and colonial courts outside of England, distinguishing itself from the jurisdiction of other courts such as the Court of Chancery, the ecclesiastical courts, and the Admiralty Court. The development of English common law in these courts occurred simultaneously with the evolution of English law within England itself.
The influence of English common law can be seen in the legal systems of most Commonwealth countries, formerly known as the British Commonwealth of Nations. These nations inherited a legal framework rooted in stare decisis, where judicial decisions and precedents form the basis of the law, rather than relying solely on written statutes.
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The influence of Roman law on English common law
One way in which Roman law influenced English common law was through the ecclesiastical courts and the development of the equity system. Elements of Romano-canon law were present in these courts and influenced the English legal system, particularly in the early 19th century. During this period, English lawyers and judges were open to borrowing rules and ideas from continental jurists and directly from Roman law. This willingness to draw on Roman law contributed to the development of English common law in parallel with Roman-based civil law systems on the continent.
The legal terminology used in English common law also reflects Roman influence. The Latinate legal glossary of English common law is one example of how Roman law left its mark on the language and terminology of the English legal system. Additionally, the concept of "ius commune" or "jus commune," which refers to a legal system common to all of continental Europe (and Scotland), influenced the development of English common law. While England did not fully adopt this system, it still had an impact on the evolution of legal practices and ideas.
The research of scholars such as Dr. hab. Łukasz Jan Korporowicz and Professor Thomas McSweeney also sheds light on the influence of Roman law on English common law. Dr. Korporowicz's work examines the presence of Roman law in English law and culture, especially after 1700. Professor McSweeney's book, "Priest of the Law: Roman Law and the Making of the Common Law's First Professionals", explores how thirteenth-century English justices modelled their practices on those of Roman law jurists working in the universities.
In conclusion, while England developed its own common law system, Roman law had a significant influence on its formation and development. This influence can be seen in the incorporation of certain legal concepts, the use of Latinate legal terminology, and the adoption of specific legal practices by English justices. The study of Roman law by early English lawyers and the recognition of a pan-European legal culture also contributed to the shaping of English common law.
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The role of judges in English common law
English common law, which originated in the early Middle Ages in the King's Court, was historically developed by judges rather than legislators. Judges in common-law countries are typically appointed or elected to office, with appointments controlled by a Judicial Appointments Commission. They are largely free from party politics, with the only administrative control over them being exercised by their judicial colleagues.
In the early centuries of English common law, judges were responsible for adapting the system of writs to meet everyday needs, applying precedent and common sense to build a body of internally consistent law. Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. It is primarily concerned with the weight of precedent, in contrast to civil law systems where judges give less weight to precedent.
In common-law countries, a person may be appointed or elected to the country's highest court without any prior judicial experience. In the United States, for example, federal judges are appointed by the chief executive (president). There is no regular pattern of promotion, and judges are not assured of a long tenure. In some courts, life tenure is provided, while in others, tenure is limited to a stated term of years.
In common-law courts, an adversarial system is usually employed, where two sides present their cases to a neutral judge. Judges generally decide the case presented to them, rather than acting as active investigators or reframing the issues.
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Frequently asked questions
English 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 Wales and has been since the Middle Ages. It is deeply rooted in stare decisis, which means "to stand by things decided".
English common law was first developed in England, where sovereigns issued writs that required judges to play a prominent role in judicial proceedings. The English common law system is based on unwritten rules and requires judges to make sound decisions. It was largely created in the period after the Norman Conquest of 1066. King Henry II of England is sometimes referred to as the "Father of Common Law" due to his legal innovations, which included expanding access to courts and promoting strong judicial institutions.
Civil law is based on a code of laws, such as the Code Napoleon developed in France, whereas common law is based on the doctrine of precedent. Common law is derived from judicial decisions instead of statutes.
