The Codification Of English Law: A Historical Perspective

English law has never been comprehensively codified. However, most of its criminal law has been codified from its common-law origins.

English law is the common law legal system of England and Wales. It comprises mainly criminal law and civil law, with each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.

The common law, so named because it was \common\ to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts.

The first Plantagenet king, Henry II, who reigned from 1154 to 1189, is credited with institutionalising common law by creating a unified system of law common to the country. He established the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) in Westminster, London.

In the 1870s, the courts in England were reorganised by the Supreme Court of Judicature Acts, and common law developed independently in the legal systems of the United States and other jurisdictions.

The role of the King's Court

The reign of Henry II (1154-1189) saw the establishment of permanent royal courts, including the Court of the King's Bench and the Court of Common Pleas. This period also witnessed the expansion of the system of royal justice across the country and across social classes, from freemen to the highest-ranking nobles. Serfs, however, were excluded.

The expanded system of royal justice that emerged during this time came to be known as the 'Common Law'. This term initially referred to the law that was consistent or 'common' throughout the country, as opposed to the diversity of regional or local laws. The Common Law was conservative in terms of substantive law, incorporating customary norms of crime, family, property, and inheritance law without significant changes. However, it was innovative in terms of procedure, emphasising written documentation, peaceful dispute resolution, local juries, and a clear hierarchy of courts.

The key feature of the Common Law was its heavy reliance on judicial precedent or case law as a means of determining the law. Judicial decisions tended to recognise tradition while also incrementally adjusting to evolving social values and popular understandings. This blend of tradition and adaptability allowed the Common Law to be understood as a sophisticated type of customary law, despite its use of written documentation.

The Common Law, as the foundation of the legal traditions of English-speaking countries, is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive legal codes and give judges less discretion in deciding cases. Within Anglophone countries, the Common Law, in the sense of customary or case law, can be distinguished from statutory law (law set out by legislative statutes) and regulatory law (regulations made by executive branch agencies).

The emergence of the Common Law

The Common Law emerged in the late 1100s, during the reign of King Henry II (1154-1189). This period saw the establishment of permanent royal courts, including the Court of the King's Bench and the Court of Common Pleas, in Westminster, London. Previously, the king's court had been itinerant, meeting wherever the king happened to be.

The expanded system of royal justice that emerged during this time came to be known as the 'Common Law'. This initially referred to the law that was the same or 'common' throughout the country, as opposed to the diversity of regional or local law. The Common Law was conservative in terms of substantive law, incorporating customary norms of the law of crime, family, property, and inheritance. However, it was innovative in terms of procedure, emphasising written documentation, peaceful dispute resolution, the use of local juries, and a clear hierarchy of courts.

The key feature of both English and American Common Law is their heavy reliance on judicial precedent, or case law, as a means of determining what the law is. Judicial decisions tend to recognise tradition and adjust incrementally to evolving social values and popular understandings, allowing Common Law to be understood as a sophisticated type of customary law, despite its use of written documentation.

The Common Law was very much a product of its time, influenced by the transition from predominantly local, informal power arrangements typical of customary law to formal government organised along bureaucratic lines. It also reflected the social structure of the time, excluding serfs while expanding to include freemen, who held some of their lands 'freely' and leased other lands from landlords in return for rent payments.

The development of the Common Law was closely tied to the emergence of a centralised judiciary and the expansion of royal justice throughout the country and across social classes. This gradual expansion of royal justice undermined the independence of local lords, as their men, both noble vassals and serfs, increasingly escaped lordly control and sought to take their cases directly to the royal courts.

The Common Law also played a significant role in the creation of a monopoly over legitimate violence by the state. This was achieved through innovations such as the Grand Jury, which created a coherent system for prosecuting crime based on the cooperation of local communities with royal judges, and the Writ of Novel Disseisin, which helped to outlaw virtually all non-royal acts of violence.

While the Common Law initially focused on procedural aspects, over time it evolved to encompass substantive rights. It continued to develop and change, influenced by various factors, including the growth of statute law, the influence of Roman law, and the rise of regulatory law.

The influence of Roman law

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. It is a common law jurisdiction, built upon case law. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions.

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC) to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I. It forms the basic framework for civil law, the most widely used legal system today.

English law was influenced by Roman law, notably in its Latinate legal glossary, for example, stare decisis, culpa in contrahendo, and pacta sunt servanda. Roman law served as a basis for legal practice throughout Western continental Europe and in most former colonies of European nations, including Latin America, and also in Ethiopia.

The first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, were well-acquainted with Roman law. One of the first and most significant treatises of common law, Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of law in Justinian's Institutes.

Signs of Roman law's influence can be found in Blackstone's Commentaries on the Laws of England, and Roman law ideas regained importance with the revival of academic law schools in the 19th century. As a result, the main systematic divisions of the law into property, contract, and tort (and to some extent, unjust enrichment) can be found in civil law as well as in common law.

The common law, so named because it was ""common" to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting local folk courts and manorial courts.

The development of a centralised judiciary

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 in Westminster, near London. The common law is primarily based on judicial decisions, or case law, rather than statutes. The common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions.

The creation of permanent royal courts, including the Courts of the King's Bench and of Common Pleas, and the royal treasury (the Exchequer) in Westminster, marked a shift from predominantly local, informal power arrangements typical of customary law to formal government organised along bureaucratic lines. The expanded system of royal justice that emerged in the late 1100s, known as the Common Law, was conservative in terms of substantive law, but innovative in terms of procedure. It emphasised written documentation, particularly royal writs, the peaceful resolution of disputes, the use of local juries to establish both law and fact, and a clear hierarchy of courts.

The Assize of Clarendon in 11666 established the Grand Jury, which created a coherent system for prosecuting crime based on the cooperation of local communities with royal judges and the central royal courts. The Grand Jury was tasked with identifying bodies as English ("presentment of Englishry") in cases of sudden death, revealing unrest between the Norman conquerors and their English subjects.

The two key writs that helped to create something more like modern property rights were the writ of Mort d'Ancestor, which began a legal action concerning inheritance upon the death of one's predecessor, and the writ of Novel Disseisin, which began a legal action to reverse a recent dispossession. These writs, along with the Grand Jury, helped to outlaw virtually all non-royal acts of violence and gave the royal government a monopoly over legitimate violence.

The first textbook of the new Common Law, known as Glanvill, was written in about 1189. The working out of these remedies over time has produced the modern system in which rights are seen as primary over procedure.

The rise of the prerogative courts

Prerogative courts were originally formed during the period when the monarch exercised greater power than Parliament. They are courts through which the discretionary powers, privileges, and legal immunities reserved for the sovereign were exercised.

By the time of the Reformation in the 16th century, the crown's prerogative powers had grown considerably. Certain courts had developed out of the king's council (Curia Regis) to give, in effect, the king's relief in those cases in which the common-law courts had failed to provide adequate remedy or in those areas in which they did not deal. These courts, all of which played an important role in carrying out royal authority, became permanent specialised institutions, such as:

• The Court of Star Chamber, which dealt with offences against public order.
• The Court of High Commission, which was established to enforce the Reformation settlement.
• The Court of Requests, a poor man's court that handled small-claims cases.
• The Court of Chancery, which was essentially a court of equity.

By the early 17th century, the prerogative courts had provoked considerable opposition from the common-law courts, which had lost a good deal of business to them and saw any further extension of their jurisdiction as a threat to the survival of common law. This opposition reached its zenith at the time when the parliamentary forces were enraged at the determination of Charles I to govern without Parliament and at his use of the prerogative courts (particularly the Star Chamber and the High Commission) to enforce his religious and social policies.

Consequently, with the exception of the Chancery, which had developed important procedures in the areas of trust with which the common-law courts refused to deal, most prerogative courts were either abolished by the Long Parliament or ceased to exist after the Restoration of the monarchy in 1660. The sole prerogative court to survive the Restoration in some form was the Court of Requests, which was itself abolished by the end of the 17th century.

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