Kara Sears
The common law system of justice, which is based on judicial decisions and embodied in reports of decided cases, has been administered by the common-law courts of England since the Middle Ages. The English common law, which originated in the early Middle Ages in the King's Court, has spread to many other nations, including almost every former colony of the British Empire, such as Canada (excluding Quebec), Australia, New Zealand, India (excluding Goa and Puducherry), and many others. Today, the common law system is employed by the greatest number of people compared to any single civil law system.
| Characteristics | Values |
|---|---|
| Country of origin | England |
| Time period of origin | Middle Ages |
| Courts | Curia Regis (King's Court) |
| Court location | Westminster, near London |
| Current countries with common law | Canada (excluding Quebec), Australia, New Zealand, UK (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the US, Bangladesh, and many others |
| Former colonies with common law | Almost every former colony of the British Empire except Malta |
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What You'll Learn
The development of common law in England
Common law, the body of customary law based on judicial decisions and embodied in reports of decided cases, has been administered by the common-law courts of England since the Middle Ages. 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.
In the late 13th century, the study of Civil and Canon law ceased to directly influence the development of English law. However, Roman law had influenced the first treatises on English law, and in the 13th century, Bracton drew upon Roman law to supply a method of reasoning upon legal matters and create a technical language to describe precise rules from vague customs and individual cases. Bracton's treatise, written during the reign of King Henry III, systematised and codified the common law of England, fixing the principles of common law.
English common law continued to be developed primarily by judges rather than legislators until the late 19th century. During the Late Medieval Period, English law was codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This body of legal scholarship was first published at the end of the 19th century.
English common law has directly influenced the legal systems of many former colonies of the British Empire, including Canada (excluding Quebec), Australia, New Zealand, South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, and Bangladesh.
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Influence of Anglo-Saxon law
The common law system, which is practised in countries like Canada, Australia, the United States, and many others, was born in England. It was influenced by Anglo-Saxon law and, to a lesser extent, by the Norman conquest of England, which introduced legal concepts from Norman law.
Anglo-Saxon law was the body of legal principles that prevailed in England from the 6th century until the Norman Conquest in 1066. It was influenced by Scandinavian law and the barbarian laws (leges barbarorum) of continental Europe, together forming Germanic law. Anglo-Saxon law was written in the vernacular and was relatively free of Roman influence, which was more common in continental laws written in Latin.
Anglo-Saxon law was largely derived from unwritten customs termed folk-right (folcriht in Old English, meaning 'right or justice of the people'). Local customs governed most matters, while the church played a large part in government. The oldest Anglo-Saxon law codes, especially from Kent and Wessex, reveal a close affinity to Germanic law. The first written Anglo-Saxon laws were issued around 600 by Æthelberht of Kent. Writing in the 8th century, the Venerable Bede comments that Æthelberht created his law code "after the examples of the Romans" (iuxta exempla Romanorum in Latin). However, it was not directly influenced by Roman law but rather converted older customs into written legislation, reflecting the role of the bishops in drafting it and protecting the English church.
Anglo-Saxon law contributed to the growth of common law, but there have also been significant independent advancements. For example, by the end of the 12th century, a framework for dispute resolution arose, involving principles, equity, and a quasi-adversarial system. While the Anglo-Saxons proposed assemblies for the verification of wrongdoing, they cannot be solely credited with legal enforcement. It was Christian beliefs of repentance that likely started the practice of flexible punishment, which then led the Normans to develop a remedying framework.
The influence of Anglo-Saxon law on common law is evident in the premise of common law to easily identify binding customs and rules that can be built upon. The novel rigidity of Anglo-Saxon laws allowed for specific compensation for offences to be disseminated with ease. The accessibility of the law was improved by being written in the vernacular, broadening the audience that could understand it.
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The Norman conquest of England
The common law system of justice was born in England and Wales, and it has been administered by the common-law courts of England since the Middle Ages. The English common law was largely created following the Norman Conquest of 1066, which introduced legal concepts from Norman law.
In January 1066, Edward the Confessor, the childless Anglo-Saxon King of England, died. The Anglo-Saxon Witan, a council of high-ranking men, elected Harold Godwin, Earl of Essex, as the new king, who was Edward's brother-in-law. However, William of Normandy disputed this decision, claiming that King Edward had promised him the crown years earlier. He also believed that he had strengthened his claim when he tricked Harold into swearing allegiance to him in 1063.
Determined to invade England, William assembled an army and an invasion fleet during the summer of 1066. Meanwhile, King Harold faced another threat from his brother Tostig, who had joined forces with Harald Hardrada, the King of Norway. Harold marched his army north and defeated Hardrada at the Battle of Stamford Bridge on September 25, 1066. Just three days later, on September 28, William's invasion force landed at Pevensey in Sussex.
William's army encountered resistance as they advanced towards London, and a pivotal battle for control of London Bridge took place, with William's troops eventually entering the city in December 1066. On Christmas Day, Archbishop Ealdred of York crowned William as King of England, solidifying his position as the ruler.
To solidify his control, William granted lands to his followers, built castles at strategic military points, and introduced a dialect of French as the language of the elites. He also systematically dispossessed English landowners, conferring their property to his continental followers. The Domesday Book, completed by 1086, documents the vast expropriation of land, revealing that only about 5% of land in England south of the Tees remained in English hands.
The Norman Conquest had a significant impact on the English legal system, introducing legal concepts from Norman law, which had its origins in Salic law. The Norman influence on the common law system included the centralization of government, the maintenance of written records, and the continuation of certain elements of the Anglo-Saxon system, such as the jury, ordeals, the practice of outlawry, and writs.
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Common law in the United States
Common law is a body of unwritten laws based on legal precedents and judicial decisions. It is a system of law where judges play a crucial role in deciding cases by interpreting the law and applying it to the specific facts of each case. Common law evolved from English common law, which was established in the Middle Ages in the King's Court (Curia Regis).
The United States' common law system has its roots in English common law, which was adopted and adapted during the colonial period. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions, which provided a basis for other states' common law. The United States federal courts relied on private publishers for legal information until after the Civil War, and only began publishing as a government function in 1874.
The US common law system is primarily found at the state level, with each state having its own common law rules and statutes. For example, the California Supreme Court's decision in Dynamex Operations West, Inc. v. Superior Court in 2018 led to the creation of a new section in the state's Labor Code. Federal common law exists to a more limited extent and is created and applied by federal courts in the absence of controlling federal statutes.
Common law in the US is not as prevalent as in other countries, but it still plays a significant role in certain areas. For instance, New York common law is often chosen in commercial contracts due to its depth and predictability. Similarly, Delaware corporate law is frequently selected in American corporate law issues because of its extensive body of law in this area.
In conclusion, while the United States' common law system has evolved to suit the country's unique needs and circumstances, it remains rooted in the English tradition, influencing the decision-making process in unusual cases and contributing to robust commercial systems.
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The Commonwealth of Nations
The common-law system of justice can be traced back to England, where it emerged during the Middle Ages. This system is based on the accumulation of judicial decisions and the assumption that past rulings should guide future judgments in similar cases. Over time, this body of law grew to encompass various aspects of public and private life, including property rights, contracts, and torts.
The organization's core values are enshrined in the Commonwealth Charter, which was adopted in 2013. The charter emphasizes the Commonwealth's commitment to democracy, human rights, and the rule of law, as well as international peace and security, sustainable development, and environmental protection. Through various initiatives and programs, the Commonwealth of Nations works to promote these values and support the development of its member states.
As an international organization, the Commonwealth of Nations has significant soft power and influence. It provides a platform for member states to collaborate and share best practices in various sectors, including governance, economic development, education, and health. The Commonwealth also offers technical assistance and capacity-building programs to support the development goals of its members. Additionally, the organization promotes cultural and people-to-people connections through various initiatives, fostering a sense of community and shared identity among its diverse membership.
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Frequently asked questions
England. The English common law system dates back to the early Middle Ages in the King's Court (Curia Regis).
The common law system is practiced in Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States, Bangladesh, and many other places.
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
