Kara Sears
English common law, one of the world's major legal traditions, is a system of law that originated in England in the centuries following the Norman Conquest in 1066. It is a common law system, meaning it is derived from judicial decisions and unwritten legal norms, rather than from a codified set of legal statutes. English common law was spread around the world by the British Empire, and many former colonies, including the United States, Canada, Nigeria, and Australia, continue to use common law systems today.
| Characteristics | Values |
|---|---|
| Origin | The English common law system originated in the early Middle Ages in the King's Court (Curia Regis) following the Norman Conquest in 1066. |
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis | Common law is based on previous court decisions, known as precedents or stare decisis, rather than statutory codes. |
| Development | English common law developed over many centuries and can be traced back to Anglo-Saxon kings, Roman law, and Norman legal traditions. |
| Influence | The English common law system has influenced the legal systems of former British colonies, including the United States, Canada, Australia, and others. |
| Current Use | Common law is currently used in Great Britain and other countries that were formerly British colonies. |
| Judicial Independence | The judiciary is independent, and principles such as fairness, equality before the law, and the right to a fair trial are foundational to the system. |
| Criminal Law | While most criminal law has been codified, some crimes, such as murder, remain common law crimes rather than statutory offences. |
| Civil Law | In contrast to civil law, common law does not have a comprehensive codification of legal statutes. |
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What You'll Learn
The influence of English common law in former colonies
English common law has had a significant influence on the legal systems of many of its former colonies. This influence stems from the period of colonial rule, during which England and, later, the United Kingdom, imposed their legal system on the territories they acquired. English common law, which originated in the early Middle Ages in the King's Court, formed the basis of jurisdiction in all three types of direct colonial holdings: trading posts, settlement colonies, and colonies of domination.
In trading posts along the Indian Ocean coast and in Asia, the British East India Company brought English law to its factories and settlements. This was facilitated by local sovereigns, who recognised the right of foreign merchants to live under their own legal system. The company's growing power led to the extension of its legal authority to cases involving European and indigenous subjects, and eventually, it assumed legal authority over the indigenous population as well. However, indigenous cases were often handled by local judges according to local customary law, establishing a form of legal pluralism.
In settlement colonies, such as North America, South Africa, and Australia, English common and statutory law were imposed as the sole legal system. This involved adapting English law to local circumstances, such as regulating master-slave relations in North America and adopting the practice of terra nullius in Australia, disregarding native land claims. While self-government in these colonies did not override the principle of nonrepugnancy, the Statute of Westminster granted Britain's six dominions, including Australia, Canada, and South Africa, full legal authority.
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The differences between common law and civil law
The English common law, which originated in the early Middle Ages in the King's Court, forms the basis of the legal system in many countries, including the United States, Canada, India, and Australia. Common law is a system based on case law and judicial precedent, where past rulings are considered when deciding new cases. Judicial decisions are binding and can generally only be overturned by the same court or through legislation. Common law provides extensive freedom of contract, with few provisions implied into the contract by law.
Civil law, on the other hand, is a codified system of law that originated from Roman law. It is prevalent in continental Europe and the legal systems of former French, Dutch, German, Spanish, and Portuguese colonies or protectorates, as well as countries like Russia and Japan. Civil law is based on codes and laws, and judges have a more limited role in applying these laws to specific cases. Contracts in civil law systems tend to be shorter since there are implied provisions that can remedy inadequacies or ambiguities.
One key distinction between the two systems is the role of precedent. Common law adheres to the stare decisis principle, where courts are bound by earlier rulings or precedents in comparable cases. In civil law, codified legislation predominates, providing a comprehensive framework of legal rules. While civil law provides legal certainty, it may be less adaptable to changing social norms.
Another difference lies in their application and sources of authority. Common law, derived from judge-made statutes and precedents, is easily modified and adjusted, but may not always provide the same clarity as codified civil law. Civil law's reliance on codified rules offers certainty but can make it challenging to adapt. As a result of globalisation, many countries now have hybrid legal systems that incorporate elements of both traditions.
In summary, English common law and civil law differ in their historical origins, the role of judges and jurisprudence, the importance of written law, and their adaptability to change.
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The role of precedent and stare decisis
The English common law, which originated in the early Middle Ages in the King's Court, has served as the foundation for the idea of stare decisis in American jurisprudence. Common law stands in contrast to the legal system derived from civil law, which is now widespread in continental Europe and elsewhere.
Stare decisis, a Latin term meaning "let the decision stand" or "to stand by things decided", is a foundational concept in the American legal system. It holds that courts and judges should honour "precedent", or the decisions, rulings, and opinions from prior cases. The doctrine of stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent, while vertical stare decisis occurs when a court applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis.
The concept of stare decisis lessens the need for subsequent litigation and saves the time and energy of the judiciary by preventing them from having to continually decide the same legal question or issue if it has already been decided in another case. It promotes the even-handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.
However, stare decisis is not an "inexorable command", and there may be times when judges feel obliged to overturn prior rulings, especially when the justifications and interpretations of prior decisions may lose support due to changes in society or technology.
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The evolution of property owner responsibilities
Medieval Period
In the early Middle Ages, English common law originated in the King's Court (Curia Regis), providing procedural remedies rather than substantive rights. During this period, the concept of private property evolved from feudal lord-subordinate relationships to free tenants owning land, with lords retaining monetary payment rights. Legislation in the 13th century, such as the statute De donis conditionalibus (1285), allowed for the inheritance of land to be limited to direct descendants and reclaimed if their line ended (fee tail).
14th to 17th Centuries
In the 14th century, English courts deviated from consolidating land conveyance power in the present possessor. However, in the 15th century, courts reversed this trend, allowing present possessors of entailed land to extinguish the interests of descendants and conveyors. The Pleading in English Act of 1362 mandated the use of English in pleadings instead of Law French.
18th and 19th Centuries
The English Settled Land Acts of 1882, 1890, and 1925 significantly enhanced the rights of present landholders compared to common law. Liberal conceptions of property influenced legal thought in the 19th century, and the German Civil Code (effective 1900) reflected pandectists' ideas, impacting other countries' codes.
20th and 21st Centuries
In the 20th century, the United Kingdom's legal systems integrated with European Union (EU) law in 1973, influencing domestic law in constituent states. While the UK has since left the EU, English law continues to be influential globally, with jurisdictions adopting modern legal developments from England.
Today, property owner responsibilities encompass various aspects, including lease agreements, zoning laws, and easements. While statutory legislation is the most authoritative law, common law remains foundational, especially in criminal law, with murder classified as a common law crime. Property law governs the ownership and use of tangible and intangible objects, allowing for exchange, sale, and enjoyment of property rights.
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The impact of European Union law on English common law
English common law, which originated in the early Middle Ages in the King's Court, has historically been the foundation and primary source of English law. However, the legal systems in the United Kingdom began to experience integration with European Union (EU) law in 1973, marking a shift in the dynamics of English common law.
EU law is founded on treaties, such as the Treaty of Rome and the Treaty of Maastricht, which set out the objectives, rules, decision-making processes, and relationships within the EU. These treaties are negotiated and agreed upon by all member states, and any conflicts between EU law and national law are resolved in favour of EU law, as seen in the case of Aziz (2004). This prioritisation of EU law over national law, including English common law, is a significant shift from the traditional understanding of parliamentary sovereignty in the UK.
The impact of EU law on English common law is multifaceted. Firstly, it has introduced a more purposive approach to legislative interpretation, moving away from the traditional procedural focus of English common law. This shift in legal interpretation methods has influenced the way laws are understood and applied in practice. Secondly, EU law has provided guidelines for handling criminal matters, both between member countries and between a member country and a non-member country. This includes ensuring equality and prohibiting discrimination on the basis of gender across all social places, including workplaces.
Additionally, EU law has established fundamental rights that protect individuals within member countries. For example, individuals can sue organisations located within the EU for violations of human rights. This expansion of rights and protections has enhanced the legal framework within England, providing citizens with greater recourse and safeguards. Furthermore, EU law has influenced the development of English common law by providing a framework for modern legal developments. Jurisdictions that adhere to common law may incorporate these developments, and English decisions are often persuasive in such jurisdictions.
In conclusion, the integration of EU law into the English legal system has had a significant impact on English common law. It has introduced new interpretive approaches, expanded rights and protections, and influenced legal developments. While English common law remains a foundational aspect of the English legal system, the incorporation of EU law has created a multi-level governance dynamic, shaping the legal landscape in England and contributing to a more unified legal approach within the EU.
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Frequently asked questions
English common law is a body of unwritten laws based on legal precedents and customs established by the courts.
English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London, following the Norman Conquest in 1066.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, whereas civil law is regularly updated with the goal of standardized codes to create order and reduce bias.
An example of English common law is the concept of a landowner's legal duty to someone on their property, which was developed in American courts based on English common law.
English common law has influenced the legal systems of many former colonies, including the United States, Canada, Australia, and India, which give weight to judicial precedent and reasoning inherited from the English legal system.
