Gavin Howe
Common law, a term with historical origins in the legal system of England, is a body of customary law based on judicial decisions and embodied in reports of decided cases. It 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 established a unified legal system, gradually replacing local folk courts and manorial courts. The common law of England was largely created in the period after the Norman Conquest of 1066, when a number of legal concepts and institutions from Norman law were introduced to England.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Location | England and Wales |
| Basis | Procedural remedies, not substantive rights |
| Development | Largely created after the Norman Conquest of 1066 |
| Historical Influence | Influenced the legal systems in Wales, Ireland, and the British Empire |
| Modern Influence | Influenced the legal systems in the United States and most Commonwealth nations |
| Court Hierarchy | Supreme Court of the United Kingdom has authority over civil law cases in England, Wales, and Northern Ireland |
| Judicial Independence | Judges have discretion in deciding cases |
| Legal Principles | Fairness, equality before the law, protection of individual rights and private property, and the right to a fair trial |
| Primary Source of Law | Statutory legislation, including Acts of Parliament, regulations, and by-laws |
| Secondary Source of Law | Common law, based on stare decisis, judicial decisions, custom, and usage |
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What You'll Learn
The origins of common law in England
The English common law system, which has been in use for several centuries, 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. The common law, so named because it was common to all the king's courts across England, established a unified legal system, gradually replacing local folk courts and manorial courts.
Prior to the Norman Conquest of 1066, local customs governed most matters in England, while the church played a large part in government. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules similar to those used by the Germanic peoples of northern Europe. The Normans, who spoke French, had also developed customary law in Normandy, administered by literate clergymen familiar with Roman law and the canon law of the Christian church.
Following the Norman Conquest, a number of legal concepts and institutions from Norman law were introduced to England, including the concept of 'time immemorial', which was defined in 1276 as being any time before 6 July 1189 (i.e., before Richard I's accession to the English throne). The early English common law system was not based on substantive rights but rather on procedural remedies, which have evolved over time to produce the modern system in which rights are seen as primary.
In the late medieval period, English common law was codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. The law developed in England's Court of Common Pleas and other common-law courts, which became the law of the colonies settled under the Crown of England and later the United Kingdom. This legal system, based on stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions, has been exported worldwide and is now found in most member states of the Commonwealth and in the United States, where it forms the foundation of the law administered in all states.
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The influence of the Norman Conquest
The Norman Conquest of England in 1066 by William, Duke of Normandy, later known as William the Conqueror, had a profound impact on the legal system of England. This invasion by the Normans, a group stemming from Northern France, marked a pivotal moment in English history, reshaping the country's political, social, and legal landscape.
Prior to the Norman Conquest, England's legal system was fragmented, with various regional customs and traditions holding sway. The Normans introduced a more centralized and uniform system of law, which became known as the common law. This common law was based on the ideas and practices of the Norman legal system, but it also incorporated elements of the existing English legal traditions. William the Conqueror's main objective was to consolidate power and establish a strong, centralized monarchy. To achieve this, he needed to overhaul the legal system, ensuring it served the interests of the Norman rulers.
One of the key changes introduced by the Normans was the concept of a hierarchical court system. They established a network of royal courts, with the monarch at the apex, that had jurisdiction across the country. This marked a shift from the pre-Conquest era, where local courts dominated and legal practices varied from one region to another. The new system brought consistency and uniformity to the law, ensuring that legal decisions were made according to a set of standardized norms and procedures. The influence of the Norman French language is also evident in the terminology and phrases that are still used in English law today.
The Norman Conquest also led to the creation of a new class of legal professionals. The Normans introduced the role of itinerant judges, who traveled across the country hearing cases and delivering judgments. These judges were typically clerics or nobles with legal training, and they played a crucial role in interpreting and applying the law. Over time, this evolved into a more specialized legal profession, with barristers and solicitors emerging as distinct roles.
Furthermore, the Conquest had a significant impact on land ownership and rights. William the Conqueror seized land from the defeated English nobles and redistributed it among his Norman followers. This led to the establishment of a new land tenure system, with the monarch as the ultimate landlord. The Normans introduced the concept of feudalism, where land was granted in return for military service and loyalty, creating a hierarchical system of land ownership that had a lasting impact on English society.
In conclusion, the Norman Conquest had a transformative effect on the legal system in England, shaping it into a more centralized, uniform, and hierarchical model. The introduction of royal courts, a specialized legal profession, and a new land tenure system marked a significant departure from the pre-Conquest era. The influence of the Normans laid the foundations for the common law tradition, which continues to form the basis of the English legal system to this day.
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Common law in the king's courts
Common law in England, also known as the Anglo-Norman legal system, 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 was common to all the king's courts across England and established a unified legal system, gradually replacing local folk courts and manorial courts.
The English common law was largely created in the period after the Norman Conquest of 1066. 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 in northern Europe. Local customs governed most matters, and the church played a significant role in government. The Normans, who spoke French, had developed their customary law in Normandy, which was influenced by Roman law and the canon law of the Christian church. Canon law was applied in English church courts, but the revived Roman law had less influence in England than in other places, due to the early sophistication of the Anglo-Norman system.
In the early Middle Ages, English common law consisted of procedural remedies rather than substantive rights. Over time, these remedies evolved into the modern system, where rights take precedence over procedure. The common law developed a reputation for fairness in the courts and the protection of individual rights and private property. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. When no precedent exists, judges are empowered to establish new precedents.
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 in "The History of English Law before the Time of Edward I" by Pollock and Maitland. The law developed in England's Court of Common Pleas and other common-law courts, which became the law in the colonies settled under the Crown of England and later the United Kingdom.
The common law in the king's courts formed the foundation of the legal traditions of English-speaking countries and is often contrasted with the Civil Law traditions of continental Europe. Common law, or 'judge-made law', preceded statutory law by about a century, as England's first distinct legislative institution, Parliament, emerged under Edward I in the late 13th century. The judiciary in England is independent, and principles such as fairness, equality before the law, and the right to a fair trial are foundational to the system. While common law has historically been the prime source of English law, the most authoritative law today is statutory legislation, including Acts of Parliament, regulations, and by-laws.
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The development of equity
The Medieval Period (until 1672)
The Medieval Period saw the development of the Court of Chancery, which was created to address the deficiencies in common law. During this time, the range of claims that would be heard became narrow, and the processes to bring actions to court became highly technical, often resulting in plaintiffs with meritorious claims being denied relief. To address this, plaintiffs could petition the King, who delegated the function of dealing with these petitions to the Chancellor. The Court of Chancery thus evolved into a judicial body, with its judicial power fully recognised by the end of the 15th century.
The Period of Transformation (17th century)
The Period of Transformation established equity as a distinct system through the work of Lord Nottingham and subsequent Chancellors, who systematized equitable rules and principles. During this time, Chancery cases were regularly reported, and equitable doctrines and precedents began to emerge. Equity jurisprudence gradually evolved into a complex body of law, distinct from but not necessarily incompatible with common law.
The Modern Period (1925 onwards)
The Modern Period saw the merger of common law and equity through legislative acts, with equitable principles taking precedence in the event of a conflict. The Judicature Acts of the 1870s, for example, fused the courts of equity and common law into a unified court system, although the actual bodies of law remained separate. This meant that it was still not possible to receive an equitable remedy for a purely common law wrong, a concept known as the "fusion fallacy".
Over time, the development of equity resulted in a shift in the appointment of Lord Chancellors, with the Crown transitioning from clergy and non-lawyers to appointing lawyers trained in the common law tradition. This change aimed to address the conflicts between the two legal systems and ensure a more cohesive approach to legal decision-making.
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Common law in modern times
Common law, rooted in the legal history of England, continues to form the basis of legal systems in several countries worldwide, including the United States. While the specifics of common law may vary across jurisdictions, its fundamental principles remain relevant and influential in modern legal practices.
In modern times, common law is recognized as a dynamic and adaptable system of law, capable of evolving to meet the changing needs and complexities of society. This adaptability is one of its key strengths, ensuring that the law remains relevant and responsive to social, economic, and technological changes. For example, common law has had to adapt to accommodate developments in areas such as intellectual property, data protection, and environmental law, which may not have been contemplated when the original principles were established.
The process by which common law evolves is through judicial precedent, where past decisions made by judges in similar cases are used as guidelines for future rulings. This ensures consistency and predictability in the law while allowing for incremental changes over time. Judges play a crucial role in interpreting and applying the law to new situations, filling in gaps where legislation may be lacking, and contributing to the growth of common law through their rulings.
Another significant aspect of common law in modern times is its interaction with statutory law. While common law forms the foundation of the legal system, it is often supplemented and modified by legislation passed by governing bodies. This interplay between common law and statutory law allows for a more flexible and responsive legal framework. Statutory law can address specific issues or make necessary changes to the law, while common law provides the underlying principles and framework within which these laws operate.
The influence of common law can also be seen in the increasing globalization of legal systems. As international trade and cooperation continue to grow, common law systems provide a familiar and predictable framework for cross-border transactions and disputes. Common law principles and practices are often adopted or considered in international commercial arbitration, contract law, and even in the development of international human rights law.
Lastly, access to common law information and resources has been transformed by the digital age. With online databases, legal research tools, and widespread availability of case law, the common law is more accessible than ever before. This increased accessibility not only benefits legal professionals but also empowers individuals to understand and engage with the legal system more effectively.
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Frequently asked questions
Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. It is mainly based on a history of judges' decisions rather than relying on lawmaking codes.
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 was largely created in the period after the Norman Conquest of 1066.
Common law developed through judge-made laws and precedents in the proceedings of Royal justices in the Circuit courts. The law developed in England's Court of Common Pleas and other common-law courts, which became the law of the colonies settled under the Crown of England.
Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. Civil law, on the other hand, is based on theoretically comprehensive legal codes, leaving judges with less discretion in deciding cases.
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