Cameron Miranda
The common law system, as we know it, emerged in England during the Middle Ages, specifically in the 1200s, when the first extant Year Book of court cases was published in 1268. The term common law refers to a body of law based on court decisions and precedents rather than codes or statutes. It is largely uncodified, with no comprehensive compilation of legal rules, and is often contrasted with civil law, which has a different form of reasoning and is prevalent in mainland Europe. Common law systems can be found in several countries today, including the US, Canada, India, and Australia, and they are known for their flexibility and adaptability to changing societal norms.
| Characteristics | Values |
|---|---|
| Year of creation | The common law system in England was created in the Middle Ages, specifically after the Norman Conquest of 1066. |
| Main sources | Plea rolls and Year Books, which were written in Latin and published yearly starting in 1268. |
| Precedent | Common law relies on precedent, meaning judicial decisions made in similar previous cases are followed. |
| Flexibility | Common law is flexible as it can respond to changes in society and higher courts can overrule prior decisions without waiting for lawmakers to act. |
| Efficiency | As judges only need to follow precedent, court proceedings are shorter and save time and money. |
| Adaptability | Common law can address unforeseen situations as it is not limited to statutes and rules created by lawmakers. |
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What You'll Learn
The influence of Roman law
The common law of England was largely created in the period after the Norman Conquest of 1066. 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 the yearly compilations of court cases known as Year Books. The impact of Roman law had decreased after this period, but Roman divisions of actions—such as in rem (actions against a thing or property) and in personam (actions directed against a person)—laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries.
Roman law ideas regained importance with the revival of academic law schools in the 19th century, and today, the main systematic divisions of the law into property, contract, and tort can be found in both civil law and common law. Several recent writers have noted that classical Roman law is in many respects closer in character to common law than it is to modern civil-law systems derived from Roman law. For example, in both common law and classical Roman law, a plaintiff could only bring an action by obtaining a document from a magistrate that identified the precise type of claim being asserted.
Additionally, both systems divided legal actions into two stages: the first devoted to identifying the legal issue, and the second to proving and deciding the issue in favour of one party. Another similarity is that, with only one or two minor exceptions, the only remedy a jury could provide was an award of monetary damages. Finally, both systems perceived two distinct bodies of law: traditional rules that became rigid and difficult to change, and a more flexible set of rules based on fairness and justice.
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The Norman Conquest
William's claim to the English throne was based on his familial relationship with the childless Anglo-Saxon king, Edward the Confessor, who died in January 1066. Edward was succeeded by his brother-in-law, Harold Godwinson, who defeated and killed the Norwegian king, Harald Hardrada, at the Battle of Stamford Bridge on 25 September 1066. Just three days later, William's army landed at Pevensey in Sussex, southern England. William's victory at the Battle of Hastings on 14 October 1066 resulted in profound political, administrative, and social changes in the British Isles.
One of the most significant consequences of the Norman Conquest was the introduction of Anglo-Norman, a northern dialect of Old French, as the language of the ruling classes in England. This displaced Old English, which ceased to be the language of literature, law, and administration. The language of official documents changed from Old English to Latin, and male names like William, Robert, and Richard became common. While intermarriage between Normans and native English was uncommon before 1100, it became more frequent within a century of the invasion.
The Conquest also led to the near-total replacement of the English aristocracy with a Norman one, as William divided the country among Norman tenants-in-chief and mesne tenants, holding their fiefs by knight service. William retained the highly organised central and local government and effective judicial system of Anglo-Saxon England, including the Curia Regis or the King's Court. He introduced forest laws, setting aside large sections of England as royal forests, and the Domesday survey, an administrative catalogue of the landholdings of the kingdom. William also transformed the English church, replacing Anglo-Saxon abbots and bishops with Normans and importing numerous monks. He removed ecclesiastical cases from secular courts, allowing the introduction of canon law, and presided over more frequent church councils.
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The emergence of formal government
During this period, Henry II established the foundations of a centralised government by creating permanent institutions. He founded the royal treasury, known as the Exchequer, and established permanent royal courts, including the Courts of the King's Bench and of Common Pleas, in Westminster, near London. This marked a shift from the previous itinerant nature of the king's court, which previously met wherever the king was located.
Henry II's reorganisation of royal justice was comprehensive. It extended geographically across the country and socially, encompassing all classes from freemen to the highest-ranking nobles. This expansion of royal justice laid the groundwork for the development of common law, which aimed to establish a uniform system of laws across the nation.
The innovations introduced by Henry II also included the establishment of the Grand Jury. This institution played a pivotal role in creating a coherent system for prosecuting crimes. It achieved this by fostering cooperation between local communities and royal judges, thereby integrating local knowledge with the authority of the central royal courts.
Additionally, the 12th century witnessed the emergence of the "Year Books," which served as yearly compilations of court cases. These Year Books, first published in 1268, became the principal source for understanding the evolving legal doctrines, concepts, and methods during the formative years of common law, from the 13th to the 16th centuries. They provided valuable insights into the development of legal reasoning and the transition from local customs to a more standardised system of justice.
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The development of case law
The 12th and 13th centuries saw a shift from local, informal power arrangements to formal government, with the reign of Henry II (1154-1189) witnessing the establishment of permanent royal courts in Westminster. This period also saw the emergence of the doctrine of precedent, with judicial decisions based on tradition, custom, and precedent. The early development of case law in the 13th century is attributed to Bracton's "On the Laws and Customs of England", which led to the yearly compilations of court cases known as Year Books. These Year Books, the first of which was published in 1268, are considered the principal source of knowledge for the developing legal doctrines, concepts, and methods of the time.
The common law system, as we know it today, evolved over several centuries, with the influence of Roman law decreasing sharply after the age of Bracton. Common law stands in contrast to civil law systems, which rely primarily on codes and statutes. It is based on precedent, with judges following previous rulings and judicial decisions rather than strict codes. This flexibility allows common law to adapt to changes in society and address unforeseen situations.
In the United States, common law was influenced by English common law, with Massachusetts becoming the first state to establish an official Reporter of Decisions after the American Revolution in 1776. Today, several countries, including the US, Canada, India, and Australia, continue to rely heavily on common law for resolving legal disputes.
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Common law in the modern world
Common law, as we know it, started in England during the Middle Ages, after the Norman Conquest of 1066. It is a body of law based on court decisions rather than codes or statutes. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law is generally uncodified, which means there is no comprehensive compilation of legal rules and statutes.
In the modern world, common law systems can be found in several countries, including the US, Canada, India, and Australia. These countries rely heavily on common law when resolving their legal disputes. Common law is often contrasted with civil law, which is the other main legal system used in the world today. Civil law systems rely primarily on codes and statutes, and they have clear rules for how judges need to rule in specific disputes. Common law, on the other hand, is flexible and adaptable, as it can respond to changes in society and address situations not originally predicted by lawmakers. For example, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act.
The development of case law in the 13th century has been traced to Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as Year Books. These Year Books are a principal source of knowledge for the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognizable form.
In the United States, common law was first established in Massachusetts after the American Revolution in 1776. As newer states needed law, they often looked to the Massachusetts Reports for authoritative precedents as a basis for their own common law. Today, the United States federal courts rely on both government and private-sector publishers of law reports, with West Publishing in Minnesota being the largest private-sector publisher.
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Frequently asked questions
Common law was created in the period after the Norman Conquest of 1066.
The common law system as we know it started in England during the Middle Ages, in the 12th and 13th centuries.
The first extant record of common law, known as the "Year Books", was published in 1268.
Common law directly influenced the legal system in Ireland and partially influenced the distinct legal system in Scotland. It also laid the foundation for the legal systems in the United States and most member states of the Commonwealth.
