Keith Mack
Common law, also known as customary or case law, is a legal system that heavily relies on judicial precedent. It originated in England in the centuries following the Norman Conquest in 1066, unifying the legal system and gradually replacing local folk and manorial courts. This system, common to all the king's courts across England, was then spread to Wales, Ireland, and overseas colonies, influencing the legal traditions of many English-speaking countries. The key feature of common law is its sophisticated blend of recognising tradition and adapting to evolving social values, allowing judges to establish new precedent in cases of first impression.
| Characteristics | Values |
|---|---|
| Origin | The concept of common law has its roots in England, dating back to the Middle Ages. It evolved from a blend of Anglo-Saxon customs and norms, as well as judicial decisions made by the King's Court. |
| Development | Common law developed over centuries through a process of judicial precedent, where decisions made by courts in similar cases were followed and built upon. This created a body of law that was consistently applied and evolved over time. |
| Precedent | Judicial precedent is a key feature of common law. It means that past decisions made by higher courts are binding on lower courts, and courts follow the principle of stare decisis, Latin for "to stand by things decided." This ensures consistency and predictability in the law. |
| Case Law | Common law relies heavily on case law, which are the decisions and opinions of judges in past cases. These cases are used as references and precedents for future decisions, creating a body of law that is based on practical examples and interpretations. |
| Judges | In the common law system, judges play a pivotal role in interpreting and applying the law. They are tasked with resolving disputes by referring to past decisions and adapting the law to new situations, effectively shaping and refining the law through their rulings. |
| Flexibility | One of the strengths of common law is its flexibility and adaptability. It allows judges to interpret and apply the law based on the unique facts and circumstances of each case, ensuring that justice is served and the law remains relevant in a changing society. |
| Stability and Consistency | The principle of stare decisis in common law promotes stability and consistency in the legal system. By following precedent, common law ensures a degree of certainty and predictability in legal outcomes, providing clarity for individuals and businesses. |
| Social Change | Common law has the ability to adapt to social and cultural changes. Judges can interpret and apply the law in a way that reflects evolving societal values and norms, allowing the law to remain relevant and responsive to the needs of a dynamic society. |
| Wide Influence | Common law has had a significant influence globally. It forms the basis of legal systems in many countries, including the United States, Canada, Australia, New Zealand, and certain Asian and African nations, shaping legal practices and principles worldwide. |
| Contemporary Relevance | Today, common law continues to be a prominent legal system, often existing alongside other legal traditions, such as civil law. It remains dynamic and influential, shaping legal practices, contractual relationships, and dispute resolutions in numerous jurisdictions. |
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What You'll Learn
Common law in England
Prior to the Norman Conquest, much of England's legal business was carried out in local folk courts in its various shires and hundreds. There were also urban borough courts, merchant fairs, and manorial and seigniorial courts held by large landowners. The Anglo-Saxons, especially after the reign of Alfred the Great (871), had a set of rules similar to those used by Germanic peoples in Northern Europe. Local customs governed most matters, and the church played a significant role in governance. Crimes were treated as wrongs, and compensation was made to the victim.
The Norman Conquest marked a period of change, as the English common law gradually supplanted local folk courts. The 12th century saw the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas in Westminster, during the reign of Henry II (1154-1189). This expansion of royal justice gave the king's court jurisdiction over property disputes and outlawed non-royal acts of violence.
English common law has been characterised by its reliance on judicial precedent, also known as stare decisis ("to stand by things decided"). This means that courts follow precedents established by previous decisions, and when a similar case arises, they align their reasoning with those precedents. However, in cases without precedent or clear legislative guidance, judges are empowered to establish new precedent.
English common law has had a significant influence on the legal systems of other countries, including the United States, Canada, Hong Kong, and most Commonwealth countries. It was spread across the British Isles to Wales and Ireland, and later to colonies, and has been adopted by former British colonies through reception statutes.
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Common law in the US
The adoption of common law in the US can be traced back to the American Revolution, when each of the states and the national government of the newly formed nation embraced it. As new states joined the union, they too adopted the common law system, either explicitly or through judicial decisions. Notably, the US courts are not bound by the decisions of English common law courts, even those that predate the American Revolution. Instead, US courts may refer to the decisions of other states within the union or English courts for guidance.
The key characteristic of common law in both England and the US is its reliance on judicial precedent or case law. This means that judges' decisions are based on previous rulings in similar cases, creating a body of law that evolves over time while also recognising tradition. This sets it apart from civil law traditions, which are based on comprehensive legal codes that offer less discretion to judges.
In conclusion, common law in the US has a rich history, drawing from English legal traditions and adapting them to the unique context of the nation. It continues to evolve through judicial decisions and the interpretation of precedent, shaping the legal landscape of the country.
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Christianity and common law
Common law, which originated in the practices of the courts of English kings following the Norman Conquest in 1066, established a unified legal system across England. This system gradually replaced local folk courts and manorial courts.
Christianity is considered to be a part of the origin of common law. It is a major influence in shaping Western civilization and has played a significant role in the development of legal systems in various parts of the world. Christianity is based on the life and teachings of Jesus Christ, who Christians believe to be the Messiah, or the "anointed one." It originated in the eastern Mediterranean as a Jewish sect and spread to Europe, becoming the dominant religion within the Roman Empire.
In the context of common law, Christianity is not regarded as controlling or imposing. While discussing religious duties, narrow views of morality, or things related to decency, courts have not treated Christianity as a binding authority. However, it is acknowledged that an insult to Christianity, as the popular religion of a country, can disturb the public peace.
The Bible, the sacred text of Christianity, provides guidance on marriage, which is a significant topic within the religion. Common law marriage, recognized in a minority of states, allows couples to legally marry without the presence of an official, such as a church or government representative. This was particularly relevant in small, remote villages where accessing officials was challenging. Christians are encouraged to carefully consider their options, evaluate their motives, and uphold the honor of their union in the eyes of both God and mankind.
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Common law and precedent
Common law, also known as customary or case law, is deeply rooted in stare decisis, which means "to stand by things decided". It is a body of law based on judicial decisions and reports of decided cases that has been administered by the courts of England since the Middle Ages. The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing the local folk courts and manorial courts.
The key feature of both English and American versions of common law is their heavy reliance on judicial precedent, or case law, as a means of determining what the law is. Judicial decisions tend to recognise tradition and adjust incrementally to evolving social values and popular understandings. This makes common law a sophisticated type of customary law, despite its use of written documentation. Common law may be contrasted with civil law traditions, such as those in continental Europe, which are based on comprehensive legal codes that leave judges with less discretion in deciding cases.
The principles of equity and the law merchant are recognised as part of the common law. The law merchant is defined as the system of rules, customs, and usages generally recognised and adopted by traders as the law for the regulation of their commercial transactions. Christianity is also considered part of the origin of common law, although it is not regarded as controlling or imposing in nature when discussing religious duty or matters of morality and decency.
In the United States, the origin of common law can be traced back to various sources, including the common law principles of England, equity principles, Christianity, and ecclesiastical courts. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion. After the American Revolution, the national government of the new nation also adopted common law, and new states continue to adopt the common law system when they are formed.
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Common law and the British Empire
Common law, which originated in England, is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. It is so named because it was common to all the king's courts across England and originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing the local folk courts and manorial courts.
The English common law system directly influenced the legal systems in Wales (since 1536), Ireland, and later the British Empire's overseas colonies. The principles of common law were also adopted in the United States, with each new state adopting the system either by express provision or judicial decision. The U.S. courts are not required to adhere to the decisions of English common law courts, but they may look to them for guidance.
The development of common law in England was heavily influenced by the reign of Henry II (1154-89), during which the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. This marked a shift from local, informal power arrangements to a formal government organised along bureaucratic lines.
Common law is considered a sophisticated type of customary law, as it relies on judicial precedent and written documentation while also recognising tradition and adjusting to evolving social values. It is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive 'legal codes' that give judges less discretion in deciding cases.
The first attempt at a comprehensive compilation of centuries of common law was made by Lord Chief Justice Edward Coke in his treatise, "Institutes of the Lawes of England", in the 17th century.
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Frequently asked questions
The term 'common law' comes from the fact that it was common to all the king's courts across England.
Common law in England originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing local folk courts and manorial courts.
Common law in the US can be traced back to various sources, including the common law principles of England, the equity principles, Christianity, and ecclesiastical courts. After the American Revolution, each of the states and the national government of the new nation adopted common law.
