The Evolution Of Legal Systems: Laws' Ancient Origins

Laws have been around in some form for centuries, but the concept of 'common law' as we know it today originated in medieval England, following the Norman Conquest in 1066. This established a unified legal system, gradually replacing local folk courts and manorial courts.

Common law, also known as 'case law', is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means 'to stand by things decided'. This means that courts follow precedents established by previous decisions.

In the US, the Constitution is the ultimate source of the law. Within the boundaries of the Constitution, there are two primary sources of law: common law and statutory law. Common law comes from the judicial branch, with judges interpreting and applying the law, while statutory law is created by the legislative branch through the lawmaking process.

Common law and its origins

Common law, also known as case law, is a body of law based on custom and general principles embodied in case law. It serves as a precedent and is applied to situations not covered by statute. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions.

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 at Westminster, near London. It established a unified legal system, gradually supplanting local folk courts and manorial courts. The common law of England was largely created in the period after the Norman Conquest of 1066.

The key feature of both English and American versions of Common Law is their heavy reliance on judicial precedent, or case law, as a means of determining what the law is. Common law is conservative in terms of the substantive law, incorporating without radical change many of the customary norms of the law of crime, family, property, and inheritance. However, it is very innovative in terms of procedure, emphasising written documentation, the peaceful resolution of disputes, the use of local juries, and a clear hierarchy of courts.

Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States, which adopted it after the American Revolution.

How laws are made

Laws are made through a multi-step process that begins with a bill, which is a proposal for a new law or a change to an existing law. In the US, ideas for bills can come from sitting members of the U.S. Senate or House of Representatives, be proposed during their election campaigns, or be petitioned by citizens or citizen groups. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before the chamber to be voted on. If it passes one body of Congress, it goes through a similar process in the other body. Once both bodies vote to accept a bill, they must work out any discrepancies between the two versions. Then, both chambers vote on the same version of the bill. If it passes, it is presented to the president. The president can approve the bill and sign it into law, or they can refuse to approve it, which is called a veto. If the president chooses to veto a bill, Congress can vote to override that veto and the bill becomes a law.

The role of the courts

Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.

The common law system was established 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.

In the modern era, common law systems are considerably more complicated than a simple system of precedent. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.

Common law is more malleable than statutory law. Firstly, common law courts are not absolutely bound by precedent, but can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal and social philosophy. Secondly, the common law evolves through a series of gradual steps, so that over a decade or more, the law can change substantially but without a sharp break, reducing disruptive effects.

In the United States, there is no plenary reception statute at the federal level that continues the common law and thereby grants federal courts the power to formulate legal precedent like their English predecessors. However, it is universally accepted that the Founding Fathers of the United States, by vesting judicial power into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, vested in them the implied judicial power of common law courts to formulate persuasive precedent.

The rule of law

Accountability

The government and private actors are accountable under the law.

Just Law

The law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.

Open Government

The processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient.

Accessible and Impartial Justice

Justice is delivered in a timely manner by competent, ethical, and independent representatives who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

The idea of the rule of law can be regarded as a modern iteration of the ideas of ancient Greek philosophers, who argued that the best form of government was rule by the best men. Plato advocated for a benevolent monarchy ruled by an idealized philosopher king, who was above the law. In contrast, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.

The use of the phrase "rule of law" can be traced back to 16th-century Britain, and it was further popularized in the 19th century by British jurist A.V. Dicey. The rule of law has been enshrined in Article 2 of the Treaty on European Union as one of the common values for all Member States.

Statutory law

In the US, federal statutory law is passed by Congress and signed by the President. Federal statutory law is found in the United States Code, which is a consolidation and codification of the general and permanent laws of the United States. Each state also has its own state statutes, found in state codes. For example, Washington State has the Revised Code of Washington.

Statutes are arranged by titles, and individual titles can consist of one or more print volumes. Statutes are broadly arranged by title, then chapter, then section.

Other types of statutes include declaratory, remedial, temporary, perpetual, affirmative, negative, personal, real, and mixed.

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