Anaya Nolan
The origins of British common law can be traced back to the early Middle Ages, with roots in the Roman law that was taught and studied in England during the 12th century. The first textbook of common law, known as Glanvill, was written around 1189 and described the expansion of the king's jurisdiction over property disputes. The reign of Henry II (1154-1189) saw the establishment of permanent royal courts and a shift towards a more formal and centralized system of government. This period also marked the reintroduction of continental and Roman legal concepts following the Norman Conquest of 1066, which replaced local folk and manorial courts with a unified legal system. Common law, as it stands today, is deeply rooted in stare decisis, or the principle of following precedents established by previous judicial decisions, and has evolved to become the foundation of legal traditions in English-speaking countries and many Commonwealth nations.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the King's Court (Curia Regis) in the early Middle Ages, after the Norman Conquest of 1066. |
| Influence | The English common law influenced the legal systems of the United States, Commonwealth countries, and former British colonies. |
| Judicial Precedent | Common law heavily relies on judicial precedent or case law, where courts follow previous decisions and precedents. |
| Roman Influence | Roman law influenced English common law, with lawyers and judges in 12th-century England being schooled in Canon and Civil law. |
| Innovation | Common law emphasized written documentation, peaceful dispute resolution, local juries, and a clear hierarchy of courts. |
| Development | Common law was developed by judges rather than legislators until the late 19th century. |
| Maxims | Ancient maxims played a significant role in common law, with many originating from Roman Law and being stated in Latin. |
| Unification | Common law established a unified legal system across England, replacing local folk and manorial courts. |
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What You'll Learn
Influence of Roman law
The influence of Roman law on the English legal system is evident in the Latinate legal glossary that characterises English common law. Many ancient maxims that were prevalent in common law adjudication until the 19th century, such as "one cannot be a judge in one's own cause", originated in Roman law. These maxims were often stated in Latin even in English decisions.
English common law, which originated in the early Middle Ages, was influenced by Roman law, especially in the context of the ecclesiastical courts and the development of the equity system. The equity system, which focused on procedural remedies rather than substantive rights, incorporated customary norms of law, including those influenced by Roman law.
The 13th century saw English justices model their practices on those of Roman law jurists, indicating a direct influence of Roman legal traditions on the development of English common law. This influence continued, and in the early 19th century, English lawyers and judges were receptive to borrowing rules and ideas directly from Roman law and continental jurists.
The expansion of the British Empire led to the spread of English common law across the British Isles, and later to colonies, resulting in the evolution of legal systems influenced by English common law in countries like the United States and Commonwealth nations. These legal systems contrast with the civil law systems prevalent in continental Europe, which are based on comprehensive 'legal codes' resembling the Roman law model.
In conclusion, Roman law has had a significant influence on the development of English common law, both directly through the adoption of legal principles and indirectly through the spread of English common law across the globe.
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Norman Conquest of 1066
The Norman Conquest of 1066 was a pivotal event in the history of England, marking the invasion and occupation of the country by an army of Norman, French, Flemish, and Breton troops led by William, the Duke of Normandy, later known as William the Conqueror. This conquest had far-reaching consequences, including significant political, economic, social, and legal transformations.
In the years leading up to the conquest, England had been ruled by the Anglo-Saxons since the 5th century AD. The death of King Edward the Confessor in January 1066 triggered a succession crisis, as he had no heir. Several contenders, including William, claimed the throne. Ultimately, Edward's brother-in-law, Harold Godwinson, was crowned Harold II, setting the stage for the Norman Conquest.
William gathered an army of approximately 4,000 to 7,000 knights and foot soldiers and set sail across the English Channel. On September 28, 1066, he landed at Pevensey in Sussex, while Harold was occupied with a Viking invasion in the north, which he successfully repelled. Racing southward, Harold and his army of 7,000 men reached Hastings on October 13. The Battle of Hastings ensued on October 14, with William's forces surprising Harold's army at dawn. Despite initial resistance, rumours of William's death spread panic among Harold's troops, leading to their eventual defeat.
The conquest resulted in profound changes to the political landscape of England. William centralised power under his rule, establishing a system of feudal vassals who owed allegiance to him as the lord of the land. He divided the country among Norman tenants-in-chief and intermediate tenants, granting them land in return for military service. This revolutionised the upper ranks of English society and severed England's links with Scandinavia, drawing the country closer to the Continent, particularly France.
The Norman Conquest also had a significant impact on the legal system in England. It marked a turning point in the development of English common law. The Anglo-Saxon legal system, influenced by Germanic customs and with the church playing a prominent role in governance, was gradually supplanted. The Norman Conquest introduced Roman legal influences and led to the emergence of a new body of rules based on local conditions. The establishment of a centralised judiciary, the King's Court or Regis Curia, and the unification of the court system contributed to the growth of a common law system across the realm. This system, rooted in stare decisis ("to stand by things decided"), relied on judicial precedent and gradually spread throughout the British Isles and later, through the British Empire, to various colonies worldwide.
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The King's Court
The origins of common law in Britain can be traced back to the early Middle Ages, with the establishment of the King's Court, or Curia Regis, in Westminster, near London. This royal court, set up for most of the country, marked the beginning of a unified legal system that gradually replaced the local folk and manorial courts.
The 12th century saw a significant shift in northwestern Europe, transitioning from local, informal power structures to formal governments with bureaucratic systems. King Henry II's reign embodied this transformation in England, as he expanded royal justice geographically and socially, impacting all classes from freemen to high-ranking nobles. This expansion of royal justice, along with the norms it upheld, laid the foundation for what became known as the 'Common Law'.
The term 'Common Law' originally signified the law that was uniform or 'common' across the country, in contrast to the diverse regional and local laws that previously existed. While it did not seek to alter substantive legal norms, it introduced innovations in terms of procedure. Common Law emphasised written documentation, particularly royal 'writs', peaceful dispute resolution, the involvement of local juries in establishing law and facts, and a clear hierarchy of courts.
The influence of Roman law, which had been taught and studied by English lawmakers in the 12th century, is also evident in the development of Common Law. Texts such as Justinian's Institutes and the Corpus Juris Civilis provided an educational foundation for law students and contributed to the integration of Roman legal principles into English law. Additionally, the first textbook of the new Common Law, known as Glanvill (written around 1189), described the use of writs or royal orders in initiating legal actions, further expanding the king's jurisdiction over property disputes and outlawing non-royal acts of violence.
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Judicial precedent
The reliance on judicial precedent means that Common Law can be understood as a sophisticated type of customary law, despite its use of written documentation. This is because judicial decisions tend to both recognise tradition and incrementally adjust to evolving social values and popular understandings.
In the late 19th century, there was a critical discussion about the rigid adherence to precedent in Common Law, no matter how old or ill-considered the precedent may be. Oliver Wendell Holmes Jr. commented in his famous article, "The Path of the Law", that it is:
> revolting to have no better reason for a rule of law than that so it was laid down in the time [of its origin].
Common Law stands in contrast to the Civil Law traditions of continental Europe, which are based on theoretically comprehensive 'legal codes' that leave judges with less discretion in deciding cases. Common Law, on the other hand, allows judges to resolve issues and establish new precedent in "cases of first impression" with no precedent or clear legislative guidance.
The English common law system has a Roman influence, which was taught and studied in the 12th century by English lawmakers. The first textbook of the new Common Law, known as Glanvill, was written around 1189. It is said to have been influenced by Justinian's Institutes, written in 533 AD during the reign of Emperor Flavius Anicius Justinian.
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Expansion of the legal system
The expansion of the English legal system across the British Isles and beyond is deeply intertwined with the country's colonial history. England first spread its legal system to Wales, then to Ireland, and later to overseas colonies, a process that was continued by the British Empire.
The influence of English common law can be seen in the legal systems of the United States and most Commonwealth countries, which were once part of the British Empire. All U.S. states, except Louisiana, have implemented reception statutes or adopted common law by judicial opinion. Reception statutes are statutory laws that newly independent former colonies can adopt, where the new nation accepts pre-independence common law unless explicitly rejected by the new legislative body or constitution. Examples of reception statutes in the United States include the states of Canada and its provinces, and Hong Kong.
English common law also influenced the legal system in Scotland, though to a lesser extent, as Scotland has a distinct legal system. Additionally, India, a former British colony, derives most of its modern judicial framework from the British legal system.
The expansion of the English legal system was facilitated by the development of permanent royal courts during the reign of Henry II (1154-1189). This period marked a shift from predominantly local, informal power arrangements to formal government organized along bureaucratic lines. The establishment of permanent institutions, such as the royal treasury (the Exchequer) and the Courts of the King's Bench and Common Pleas in Westminster, expanded the reach of royal justice across the country and across social classes.
The 12th and 13th centuries also saw the influence of Roman law on the development of English common law. English lawmakers studied Roman law, including Justinian's Institutes and the Corpus Juris Civilis, which provided a rational and systematic approach to law-making. This influence is evident in the first treatises on English law, such as Glanvil's treatise, which drew on Roman legal principles to create a technical language for precise legal rules.
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Frequently asked questions
British common law, or 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 in Westminster, London. It was established following the Norman Conquest in 1066, which reintroduced Roman and continental ideas to Britain.
The key feature of British common law is its heavy reliance on judicial precedent, or case law. This means that judges' decisions tend to recognise tradition while also adjusting to evolving social values and popular understandings.
British common law is based on judicial decisions and reported cases, whereas civil law systems are based on comprehensive 'legal codes' that give judges less discretion in deciding cases.
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