Cameron Miranda
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England in the early Middle Ages, following the Norman Conquest in 1066, and was common to all the king's courts across the country. Common law draws from various sources, including institutionalized opinions, interpretations from judicial authorities, public juries, and earlier Anglo-Saxon traditions. It has since spread to numerous countries, including the United States, Canada, India, Australia, and New Zealand, influencing their legal systems and practices.
| Characteristics | Values |
|---|---|
| Origin | England, specifically the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066 |
| Current Users | United States, Canada, India, Australia, United Kingdom, Hong Kong, New Zealand, and more |
| Basis | Legal precedents, stare decisis ("to stand by things decided"), case law, custom, and general principles |
| Application | Civil cases, criminal cases, commercial transactions, and family law |
| Flexibility | Can respond to changes in society and address unforeseen situations not covered by statutes |
| Adaptability | Does not require lawmakers to pass changes in statutes and codes |
| Influence | Inspired new legislation and influenced the legal systems of former colonies and Commonwealth countries |
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What You'll Learn
Influence of Anglo-Saxon traditions
The influence of Anglo-Saxon traditions on common law is a complex and intriguing topic. Anglo-Saxon law, which prevailed in England from the 6th century until the Norman Conquest in 1066, formed the foundation for common law. This legal system was deeply rooted in oral traditions and unwritten customs, known as "folk-right" or "folcriht" in Old English, meaning "right or justice of the people". The laws were influenced by Germanic law and were relatively free of Roman influence, which was exerted primarily through the church.
The earliest written Anglo-Saxon laws were issued around the year 600 by Æthelberht of Kent, who created his law code after the examples of the Romans, likely referring to Romanised peoples such as the Franks. These written laws converted older customs into legislation and protected the English church. The laws of Æthelberht, as well as those of Hlothere and Eadric, Wihtred, Ine, Edward the Elder, Athelstan, Edmund, and Edgar, often took the form of amendments to existing customs and focused on public assemblies, courts of law, taxation, and legal machinery.
Anglo-Saxon law assumed that a man's wife and children were his accomplices in any crime. It also established harsh punishments for various crimes, including death and forfeiture for the most serious offences such as murder, treachery, arson, house-breaking, and theft. The preservation of peace was an important feature of Anglo-Saxon law, and it also regulated personal protection, revenge, oaths, marriage, wardship, and succession through the law of kinship.
In addition to the influence of Germanic and Roman legal traditions, Anglo-Saxon law was also shaped by Scandinavian law following the Viking invasions of the 8th and 9th centuries. The Danelaw, conquered by the Danes in the 9th century, was governed under Scandinavian law, and there was a significant resemblance between the legislation of Charlemagne and his successors and that of Anglo-Saxon kings such as Alfred the Great. The unification of the various Anglo-Saxon kingdoms into a single Kingdom of England, completed under Æthelstan, further contributed to the development of Anglo-Saxon law.
While the Norman Conquest marked the end of the Anglo-Saxon monarchy, many elements of Anglo-Saxon law were incorporated into the Norman common law, including the jury, ordeals, the penalty of outlawry, and writs. This demonstrates the lasting influence of Anglo-Saxon traditions on the common law system that continues to shape legal practices today.
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Norman Conquest
The Norman Conquest of 1066 was a turning point in the legal history of England, marking the beginning of the development of the common law system. William the Conqueror, the Duke of Normandy, successfully invaded England and defeated the then-King of England, Harold II, thus becoming the King of England by right of conquest.
Prior to the Norman Conquest, England's legal business primarily took place in local folk courts in its various shires and hundreds. There were also urban borough courts, merchant fair courts, and large landholders' manorial and seigniorial courts. The Anglo-Saxon law, which had been in place since the 5th century AD, particularly after the reign of Alfred the Great in 871 AD, consisted of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, and the church played a significant role in government. Crimes were often based on blood feuds, treated as wrongs, and resolved through compensation to the victim.
The Norman Conquest brought about significant changes to the legal landscape in England. The Normans introduced a centralized administration system and established several centralized institutions, including the Curia Regis, or the King's Court. This court assumed wide judicial powers and played a crucial role in the development of the common law system. The royal courts established by the Normans began to harmonize the divergent laws and practices that had characterized the Anglo-Saxon courts. As these royal courts had greater contact with each other than the older regional courts, their interpretations of the law became more similar, leading to the development of common law across the nation.
The Normans also had their own customary law, which they brought to England. They had no professional lawyers or judges, and literate clergymen acted as administrators. Some of these clergymen were familiar with Roman law and the developing canon law of the Christian church, which was later applied in the English church courts. The influence of Roman law on the development of English common law is notable, especially as it contrasted with the Anglo-Saxon law, which was relatively free of Roman influence.
In conclusion, the Norman Conquest of 1066 was a pivotal event that initiated the evolution of the common law system in England. The establishment of centralized institutions, the introduction of Norman customary law, and the influence of Roman and canon law through the clergy all contributed to the development of a unified legal system that gradually supplanted the local folk courts.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
English courts and the King's Court
Common law is a body of unwritten laws based on legal precedents established by the courts. It is named so because it was common to all the king's courts across England. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
Prior to the Norman Conquest, much of England's legal business took place in local folk courts in its various shires and hundreds. There were also several other individual courts across the land. Urban boroughs and merchant fairs held their own courts, and large landholders held their own manorial and seigniorial courts as needed. The Catholic Church also operated its own court system that adjudicated issues of canon law.
The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. It was created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices. The Chief Justice was the most senior judge in the superior courts, having superiority over the Chief Justice of the Common Pleas and Chief Baron of the Exchequer. The court had some criminal jurisdiction, with a royal ordinance in 1293 directing conspiracy cases to be brought to the King's Bench. The court's judges acted in trailbaston commissions around the country.
The Court of King's Bench's business saw a steep decline from 1460 to 1540, but as the new reforms began to take effect, its business was significantly boosted. Between 1560 and 1640, it rose tenfold. The court's jurisdiction initially covered a wide range of criminal matters, any business not claimed by the other courts, and any cases concerning the monarch.
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Spread to North America
Common law, which originated in England during the Middle Ages, spread to North America during the colonial period of the 17th and 18th centuries. The English common law system, which was established in the centuries following the Norman Conquest of 1066, gradually supplanted local folk courts and manorial courts, creating a unified legal system. This system was then spread to Wales, Ireland, and overseas colonies, including those in North America.
The first English colonists in North America claimed the common law system as their birthright, and it was later adopted by each of the states and the national government following the American Revolution. The spread of common law to North America was also influenced by the British Empire, which continued to propagate the English legal system in its colonies.
The United States common law system draws from English common law, but the U.S. courts are not required to adhere to the decisions of English common law courts. The U.S. courts may look to the decisions of other states within the Union and English courts for guidance, but they have the autonomy to modify or deviate from precedents if they are outdated or if the current case significantly differs from the precedent case.
The common law system in the United States has evolved over time and differs from the English system in some respects. For example, the U.S. system includes doctrines of equity jurisprudence and the law merchant, which recognizes the system of rules and customs adopted by traders for commercial transactions. Additionally, the U.S. Constitution and state constitutions, as well as legislative enactments, have influenced the development of common law in the country.
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Common law in modern times
Common law, a body of unwritten laws based on legal precedents, continues to influence modern legal systems. It is deeply rooted in the principle of stare decisis, where courts follow precedents established by previous decisions. In modern times, common law is often contrasted with civil law, a comprehensive, codified set of legal statutes created by legislators. Common law is also sometimes referred to as case law, as it is based on judicial decisions and embodied in reports of decided cases.
The evolution of legal systems over time has led to a shift in the role of courts. Initially, courts exercised a legislative function, but as legislation became more comprehensive, courts began to operate within narrower limits of statutory interpretation. This evolution has influenced the application of common law, with judges now playing a crucial role in interpreting and applying it.
In modern legal practice, common law is used to guide court rulings when the outcome of a case cannot be determined based on written rules of law. Judges presiding over cases determine which precedents apply, promoting stability and consistency in the legal system. While lower courts generally follow higher court precedents, they may deviate or modify them if they are outdated or substantially different from the current case.
Common law continues to be practised in various parts of the world, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. The legal systems of these countries have evolved from English common law, which originated in the early Middle Ages and established a unified legal system across England.
In modern times, common law remains a dynamic and adaptable system. It can be codified, creating new causes of action, or legislatively overruled. Common law also serves as a source of inspiration for new legislation, demonstrating its ongoing influence and relevance in shaping legal frameworks worldwide.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law originated in England in the early Middle Ages in the King’s Court (Curia Regis).
England spread the English legal system across the British Isles, first to Wales, then to Ireland and overseas colonies, and later to the rest of the British Empire.
Common law is based on stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions.
Many countries continue to rely heavily on common law, including the US, Canada, India, Australia, New Zealand, and the United Kingdom.
