Cecily Zamora
English common law, which originated in the early Middle Ages, is a body of law based on court decisions and accepted behaviours, customs, and traditions. It is a system of law that has been exported to many parts of the world, including the United States and countries that were formerly British colonies. English common law is based on the principle of stare decisis, which means that judges need to follow earlier decisions and rulings, also known as case law or precedent, when dealing with similar cases. This promotes stability and consistency in the legal system. English common law is distinct from civil law, which is based on a code of laws, and it is important to note that common law can be amended or repealed by Parliament.
| Characteristics | Values |
|---|---|
| Basis | The English common law is based on the Anglo-Norman legal system that superseded Anglo-Saxon law following the Battle of Hastings in 1066. It also has roots in the early Middle Ages in the King's Court (Curia Regis). |
| Influence | English common law has influenced the legal systems in the United States, most Commonwealth countries, and former British colonies, including Canada, Nigeria, Australia, and many aspects remain in jurisdictions that were once part of the British Empire. |
| Nature | Common law is a "body of law" based on court decisions and precedent, also known as case law, rather than codes or statutes. It is flexible and adaptable to changes in society. |
| Prominence of Judges | Judges play a prominent role in common law systems as they can effectively compose laws by establishing new precedents or overturning old ones. |
| Efficiency | Common law systems are efficient as court proceedings can be shorter since judges only need to follow precedent when making decisions. |
| Stability and Consistency | Common law promotes stability and consistency as outcomes are based on previous case law rather than subjective viewpoints. |
| Limitations | Common law can be superseded or replaced by legislation, and there are limits to the extent to which common law judges can reform outdated laws, particularly those derived from statutes. |
| Sources | Common law is derived from custom, precedent, and judicial decisions, while statutory legislation, including Acts of Parliament, forms the most authoritative law in England. |
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What You'll Learn
Influence on other legal systems
English common law has influenced the legal systems of many countries, especially those that were formerly British colonies, including the United States, Canada, Nigeria, Australia, and Ireland. The United States, in particular, based its common law rules on English common law, and every state except Louisiana has a common law legal system.
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 is a body of customary law, based on judicial decisions and embodied in reports of decided cases. It is made by sitting judges who apply statutory law and established principles derived from earlier decisions. It is also flexible, as it can respond to changes in society.
English common law is built upon case law, with "common law" referring to the judge-made law of the King's Bench. It is distinct from civil law, which is a codified system of law prevalent in the rest of Europe and based on Roman law. Common law, on the other hand, is based on unwritten rules and requires judges to make decisions based on previous precedents. This gives judges a prominent role in common law systems, as they can effectively compose laws by establishing new precedents or overturning old ones.
The influence of English common law on the legal systems of its former colonies is a result of the export of both common and statute law to most parts of the British Empire. Despite gaining independence from British rule, many aspects of English law have survived and continue to influence the legal traditions and principles of these countries.
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Common law's origins
The English common law system is a body of law based on court decisions and unwritten legal rules and norms, rather than codes or statutes. It originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court based in Westminster, near London. The common law of England was largely created after the Norman Conquest of 1066, which saw the Anglo-Norman legal system supersede Anglo-Saxon law.
The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, and the church played a large part in government. However, Norman custom was not simply transplanted to England; instead, a new body of rules based on local conditions emerged.
The English common law system was further developed through the legal reforms of King Henry II in the 12th century, who is sometimes referred to as the 'Father of Common Law'. Henry's legal innovations included expanding access to courts and promoting strong judicial institutions. The English common law system is based on the doctrine of stare decisis, a Latin phrase meaning 'to stand by things decided'. This means that courts and judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases later.
English common law has directly influenced the legal systems of many Commonwealth countries, including the United States. Many aspects of English common law have survived in countries that were once British colonies, including Canada, Nigeria, Australia, and India.
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Common law vs civil law
Common law, the body of customary law based on judicial decisions, has been administered by the courts of England since the Middle Ages. The English common law system 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. 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. Local customs governed most matters, while the church played a large part in government. The English common law system was later exported to most parts of the British Empire, influencing the legal traditions of many English-speaking countries. The United States, a former colony, is one such example, with each state having its own supreme court with final appellate jurisdiction, resulting in the development of state common law.
Civil law, on the other hand, is a legal system rooted in the Roman Empire, with its modern form appearing in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is generally more prescriptive than common law, relying heavily on legal codes as the primary source of law. In contrast, common law systems like that of England are less prescriptive, relying more on judicial precedent and stare decisis, with fewer provisions implied into a contract. While civil law is the most common legal system globally, practised in about 150 countries, common law forms the basis of English law, which has historically been its foundation and primary source.
Common law is made by sitting judges who apply statutory law and established principles derived from the reasoning of earlier decisions. Common law can be amended or repealed by Parliament, and while it has no comprehensive codification, most of its criminal law has been codified for certainty and ease of prosecution. Civil law, in contrast, is comprehensively codified, with civil codes stating the law in a coherent and comprehensive manner.
In terms of contracts, civil law implies many provisions into a contract, allowing for a shorter contract, whereas a common law contract must set out all the terms governing the relationship between the parties. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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The role of judges
Judges play a crucial role in interpreting and applying the law in common law systems. They are required to follow the principle of stare decisis, which means they must adhere to previous decisions and rulings, also known as case law or precedent, when dealing with similar cases. This promotes stability and consistency in the legal system, as it provides a framework for judges to rely on when making new decisions. By following precedent, judges ensure that the law is applied uniformly and fairly, and it also allows for shorter court proceedings, saving time and resources.
In the English common law system, judges not only apply the law but can also effectively create laws through their interpretations and rulings. This is because common law is based on unwritten rules, accepted behaviours, local customs, and traditions. Judges interpret these unwritten rules and establish precedents that guide future decisions. They have the power to overturn previous precedents, but this requires thorough arguments demonstrating that the earlier precedent is outdated or flawed.
Additionally, the decisions made by judges in the common law system can have an impact beyond the specific case at hand. Lawmakers in the government can respond to common law decisions and enact legislation based on those rulings. This interplay between the judiciary and the legislative branches contributes to the evolution of the legal system as a whole.
In summary, the role of judges in the English common law system is multifaceted and powerful. They interpret and apply the law, establish precedents, address new situations, and can even indirectly contribute to legislative changes. The prominence of judges in the common law system underscores the importance of judicial expertise and discretion in shaping the legal landscape.
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Common law in modern times
Common law, a cornerstone of the English legal system, has evolved over centuries and continues to form the basis of legal systems in many countries today. While its historical foundations are deeply rooted in England, common law has adapted and remains relevant in modern times.
In its traditional sense, common law refers to a body of law derived from judicial decisions and custom, rather than statutes or constitutions. It is based on the principle of stare decisis, which means "to stand by things decided." This principle gives consistency and predictability to the law by requiring courts to follow past decisions and not disturb settled matters. Over time, common law has come to encompass not just the decisions of courts but also statutory law and constitutional law, which together form the complete legal framework of a common law jurisdiction.
In modern times, common law remains a dynamic and adaptable system. While the principles and precedents established over centuries continue to guide courts, common law jurisdictions have also embraced change and evolution. For example, while past decisions are important, courts can distinguish previous cases and depart from precedent when faced with new and unique situations. This flexibility allows common law to adapt to changing social, economic, and political circumstances, ensuring that the law remains relevant and responsive to the needs of the society it serves.
One of the key features of common law in modern times is its focus on interpretation and reasoning. Judges are required to interpret statutes and past decisions and to provide clear and logical reasons for their rulings. This emphasis on interpretation and reasoning ensures that the law is applied consistently and predictably, while also allowing for evolution and development to meet contemporary needs and challenges. The common law system also provides a framework for resolving disputes efficiently and effectively through processes such as summary judgment and alternative dispute resolution.
Common law has spread beyond its country of origin and forms the foundation of legal systems in many countries, particularly those with historical ties to the United Kingdom. This has led to a degree of standardization and consistency across these jurisdictions, providing a level of certainty and predictability for individuals and businesses operating internationally. At the same time, common law has also demonstrated its adaptability by incorporating local customs and traditions in various countries, allowing it to take root and reflect the unique characteristics of each society it serves.
In conclusion, while the foundations of common law lie in the past, it remains a vibrant and dynamic legal system in modern times. Its ability to adapt to changing circumstances, coupled with its emphasis on interpretation, reasoning, and precedent, ensures that it continues to serve the needs of individuals, businesses, and societies across the globe. As a flexible and responsive legal framework, common law is well-equipped to address the challenges and opportunities of the future.
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Frequently asked questions
English common law is a body of customary law based on judicial decisions and precedents. It originated in the Middle Ages in the King's Court (Curia Regis) and was historically administered in the king's courts. Common law is derived from custom and precedent, and is concerned with substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules.
The key principle of English common law is stare decisis, a Latin phrase meaning "to stand by things decided". This means that courts and judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases later.
Civil law is a legal system based on a code of laws, such as the Code Napoleon in France. In contrast, common law is based on judicial decisions and unwritten rules, formed by previous court decisions. Common law is more flexible than civil law as it can respond to changes in society without lawmakers needing to pass changes in statutes and codes.
