Cameron Miranda
English common law, which emerged in the 12th century, is a unique legal system that forms the basis of the legal traditions of English-speaking countries. It is characterised by its reliance on judicial precedent and case law, with judges playing a key role in interpreting and applying the law. The system was established following the Norman Conquest in 1066, unifying the various local folk courts and manorial courts across England. The influence of Roman law, which was studied by English lawmakers, is also apparent in the early treatises on English law. The development of common law was influenced by Canon law and the emergence of formal government, with the creation of permanent royal courts during the reign of King Henry II. Today, common law continues to shape legal systems worldwide, with many former colonies retaining its influence and approximately one-third of the global population living in common law jurisdictions.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the practices of the courts of the English kings following the Norman Conquest in 1066. |
| Name | The common law was so named because it was common to all the king's courts across England. |
| Roman Influence | Roman law was taught and studied in the 12th century by English lawmakers. The first treatise on English common law, written between 1187 and 1189, shows clear traces of Roman influence. |
| Unification | The common law established a unified legal system across England, replacing local folk courts and manorial courts. |
| Judicial Precedent | The common law system gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. |
| Written Documentation | The common law emphasized the use of written documentation, particularly royal 'writs'. |
| Peaceful Dispute Resolution | It promoted the peaceful resolution of disputes. |
| Jury System | The common law made use of local juries to establish both law and fact. |
| Court Hierarchy | It established a clear hierarchy of courts. |
| Influence | The English common law has influenced the legal systems of many former colonies, including the United States. |
| Rule of Law | In the absence of a codified constitution, England's rule of law is founded on statute law and common law. |
| Stare Decisis | The principle of stare decisis, or "to stand by things decided", is a key aspect of common law, ensuring uniformity and consistency in judicial decisions. |
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What You'll Learn
Influence of Roman law
The English 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.
Although the English common law is unique compared to the civil law systems of other European countries, it still shows some influence from Roman law. Roman law was taught and studied in 12th-century England, and lawyers and judges of the time were often schooled in Canon and Civil law. The preface and introductory chapters of Ranulf Glanvil's treatise, 'Tractatus de Legibus et Consuetudinibus Regni Angliae' (written between 1187 and 1189), were taken from the preface to Justinian's Institutes, a text written in 533 AD during the reign of Emperor Flavius Anicius Justinian.
The influence of Roman law is also apparent in the first treatises on English law, where Roman legal principles were adapted to the fabric of English law. In the 13th century, Bracton's treatise drew upon Roman law where the common law was silent or defective. It supplied a method of reasoning upon legal matters and a technical language to describe precise rules from vague customs and individual cases.
The influence of Roman law can also be seen in the Latinate legal glossary of English common law. The English common law's emphasis on written documentation, peaceful resolution of disputes, and the use of local juries to establish both law and fact may also have been influenced by Roman law, which similarly emphasised written law and universal application.
In the early 19th century, English lawyers and judges were willing to borrow rules and ideas directly from Roman law. However, the practical application of Roman law ended when national codifications were made, such as the French civil code in 1804.
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Norman conquest
The Norman Conquest of 1066 reintroduced continental ideas and Roman legal concepts to England. Prior to the Conquest, England's legal business took place in local folk courts, with a variety of other individual courts also existing across the land. Large landholders also held their own manorial and seigniorial courts as needed. The Norman Conquest brought about the emergence of a unified legal system, gradually supplanting the local folk courts and manorial courts. This system, the common law, was common to all the king's courts across England.
The 12th century saw a shift across northwestern Europe from predominantly local, informal power arrangements typical of customary law to formal government organised along bureaucratic lines. In England, the key reign in this shift was that of Henry II (1154-89). During this time, the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) became established in Westminster, London. The creation of these permanent institutions was part of Henry's thorough reorganisation of royal justice, which expanded geographically throughout the country and socially across all classes.
The first treatise written on the common law of England, Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), was written between 1187 and 1189. Its supposed author, Ranulf Glanvil, was a prominent lawyer and advisor to King Henry II. He also served as a soldier, leading the English army in a victory over the Scots, and served as a general in the Welsh wars and in the wars against the king's permanent court. In 1180, he became Chief Justiciar of England, a role comparable to the modern office of prime minister.
The influence of Roman law on the English legal system is apparent in the first treatises on the law of England. For example, the preface and introductory chapters of Glanvil's treatise are taken from the preface to Justinian's Institutes. The use of Roman legal principles is perhaps more pronounced in Bracton's 13th-century treatise, where he drew upon Roman law to fill in gaps or defects in the common law. Roman law supplied a method of reasoning upon legal matters and a power to create a technical language to describe precise rules from vague customs and individual cases.
The English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, which led to yearly compilations of court cases known as Year Books. These are known as the law reports of medieval England and are a principal source for knowledge of the developing legal doctrines, concepts, and methods.
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Unification of legal system
The common law, so-called because it was common to all the king's courts across England, established a unified legal system. This was in contrast to the local folk courts and manorial courts that had previously been used. The unification of the legal system was a gradual process that took place over several centuries.
The 12th century saw a shift across northwestern Europe from local, informal power arrangements to formal government organised along bureaucratic lines. This shift was also seen in England, particularly during the reign of Henry II (1154-89). During this time, the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster. Henry's reorganisation of royal justice expanded geographically and socially, giving all classes, from freemen to the highest-ranking nobles, regular access to the king's court.
The influence of Roman law, which had been studied by English lawmakers in the 12th century, is also apparent in the first treatises on English law. Ranulf Glanvil's treatise, Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), written between 1187 and 1189, is considered the first treatise on English common law. It incorporates Roman legal principles into the fabric of English law, creating a rational and definite system out of vague and conflicting customs.
The development of common law continued into the 13th century, with Bracton's treatise On the Laws and Customs of England influencing the early development of case law. The yearly compilations of court cases, known as Year Books, became the principal source for knowledge of the evolving legal doctrines and concepts. The English Court of Common Pleas, established after the Magna Carta in 1215, further solidified the unification of the legal system by trying lawsuits between commoners in which the monarch had no interest.
The principles of English common law have had a lasting impact, with many former colonies retaining the common law system today. The United States, for example, has its own common law and legal practices that relate back to English law, such as jury trials and the presumption of innocence.
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Judicial precedent
The common law system in England emerged in the centuries following the Norman Conquest of 1066, unifying the diverse local folk courts and manorial courts that previously existed. The term "common law" refers to the law that was "common" throughout the country, applying in all the king's courts. The 12th and 13th centuries saw significant developments towards the establishment of this unified legal system, with the emergence of formal government and permanent royal courts during the reign of Henry II (1154-1189).
The influence of Roman law, which was studied by English lawmakers in the 12th century, is also evident in the early treatises on English law. Ranulf Glanvil's treatise, "Tractatus de Legibus et Consuetudinibus Regni Angliae" (A Treatise on the Laws and Customs of the Kingdom of England), written between 1187 and 1189, is considered the first treatise on English common law. It incorporates Roman legal principles to provide a framework for reasoning upon legal matters and creating a technical language to describe precise rules.
The development of case law in the 13th century can be traced to Bracton's "On the Laws and Customs of England," which resulted in the yearly compilations of court cases known as Year Books. These Year Books served as a principal source of knowledge for the evolving legal doctrines and concepts of the time.
The principle of stare decisis, meaning "to stand by things decided," is fundamental to the concept of judicial precedent in common law. It dictates that similar cases with analogous fact patterns should lead to the same ruling. This principle ensures uniformity and consistency in the application of common law, with lower courts abiding by the decisions of higher courts and all courts adhering to their previous rulings.
The English common law system has had a significant influence on the legal systems of many former colonies, including the United States. The adoption of common law in these countries underscores the enduring impact of English legal traditions worldwide.
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Influence on former colonies
English common law, which originated in the centuries following the Norman Conquest in 1066, established a unified legal system across England, gradually replacing local folk and manorial courts. England then spread this legal system to its colonies, including Wales and Ireland, and overseas territories, a process continued by the later British Empire.
Many former colonies, including those that are now part of the United States, continue to retain the common law system today. This is due in part to the implementation of reception statutes, which are statutory laws adopted by former British colonies upon becoming independent, by which the new nation adopts pre-independence common law unless explicitly rejected by the new legislative body or constitution. All U.S. states, except Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.
The influence of English common law can also be seen in the legal systems of other former colonies, such as Canada, Hong Kong, India, Pakistan, and Bangladesh. These countries' laws are largely based on English common law due to the period of British colonial influence during the British Raj. However, some former colonies, such as Quebec, South Africa, and Sri Lanka, have retained the civil law system of their previous colonial rulers to respect the civil rights of local colonists. Guyana and Saint Lucia, on the other hand, have mixed common law and civil law systems.
The common law system gives significant weight to judicial precedent and the style of reasoning inherited from the English legal system. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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Frequently asked questions
The English common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
The key feature of English common law is its heavy reliance on judicial precedent, or case law, as a means of determining what the law is.
While England's common law system is unique from the Civil law systems of other European countries, it does show some influence from Roman law. In the 12th century, English lawmakers studied Roman law, including Justinian's Institutes, written in 533 AD.
The English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. Judge-made common law operated as the primary source of law for several hundred years before Parliament created statutory law.
The United States is not part of the British Commonwealth, but many of its customs and practices relate back to England. The fundamental principles of injury law or "Tort Law" in the US come directly from England. Additionally, American jury trials are fashioned after British jury trials, and both countries share the principle of the presumption of innocence in their criminal justice systems.
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