Cecily Zamora
The common law system, a body of unwritten laws based on legal precedents established by the courts, was established in England in the early Middle Ages, in the King's Court (Curia Regis). The common law system was created in the period after the Norman Conquest of 1066, when England spread the English legal system across the British Isles, first to Wales, then to Ireland and overseas colonies. The common law system is now found in the United States and in most member states of the Commonwealth, with many former colonies retaining the system today.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Time Period | The common law of England was largely created in the period after the Norman Conquest of 1066 |
| Influence | The common law system has influenced the legal systems of the United States, Canada, Australia, New Zealand, India, Hong Kong, and the United Kingdom |
| Basis | Common law is based on legal precedents, judicial decisions, and customary law |
| Courts | Common law was historically administered in the king's courts, while civil law is based on a civil code |
| Complexity | Common law systems are complex due to interactions with constitutional law, statutory law, and regulatory law |
| Flexibility | Common law is flexible as it adapts to changing circumstances and allows for interpretation |
| Development | Common law was developed by judges rather than legislators until the late 19th century |
| Unification | Henry II's creation of a unified court system in the 12th century contributed to the development of common law |
| Jurisdiction | The decisions of a court in common law are binding only in its jurisdiction, and some courts have more power than others |
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What You'll Learn
The influence of the Norman Conquest of 1066
The Norman Conquest of 1066 was a pivotal event in the history of England, marking the beginning of the development of the common law system. The conquest, led by William, the Duke of Normandy, resulted in significant changes to the political, economic, social, and legal landscape of the country.
Prior to the Norman Conquest, England had followed the law of the Anglo-Saxons, which had been in place since the 5th century AD. Anglo-Saxon law was heavily influenced by the customs and traditions of the Germanic peoples of northern Europe. Local customs played a significant role in governing matters, and the church also held considerable power in government. Crimes were often treated as wrongs, with compensation made to the victim.
The Norman Conquest brought about a transition in the legal system. The Normans introduced their own customary law, which formed the basis for the development of the common law system. The conquest led to the establishment of a centralised government under King William, with the creation of centralised institutions such as the King's Court or the Regis Curia. The King's Court, established near London in Westminster, became the single royal court for most of the country.
The Normans brought with them a class of capable administrators, many of whom were feudal vassals of the king and were allotted land as a reward. This led to the centralisation of power under the king, with these vassals owing allegiance to him. The Normans also implemented a bureaucracy, which was predominantly comprised of Normans, and they began the practice of maintaining records.
The influence of the church in government began to diminish after the Norman Conquest. While some clergy were familiar with Roman law and Canon Law, which was applied in the English church courts, the Normans' own customary law took precedence. The common law system gradually supplanted the local folk courts and manorial courts, establishing a unified legal system across England.
The Norman Conquest of 1066 was, therefore, a significant turning point in the legal history of England, setting in motion the development of the common law system that would come to influence not only England but also the British Isles, the later British Empire, and eventually, a significant portion of the world's population.
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The English King's Courts
The English common law system 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. 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 and manorial courts.
The first records of an independent King's Bench, or Court of King's Bench, date back to 1234, when distinct plea rolls are found for each court. The court was created in the late 12th to early 13th century from the Curia Regis, initially following the monarch on their travels. The King's Bench's jurisdiction initially covered a wide range of criminal matters, any business not claimed by the other courts, and any cases concerning the monarch. The court's head was the Chief Justice of the King's Bench, a position established by 1268.
The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which it became a division within the High Court. The court's criminal jurisdiction was significantly challenged by the rise of the Court of Chancery and equitable doctrines in the 15th and 16th centuries, and by the end of the 14th century, much of its criminal jurisdiction had declined.
The English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. Henry II's creation of a powerful and unified court system curbed the power of canonical (church) courts, bringing him into conflict with the church, notably with Thomas Becket, the Archbishop of Canterbury.
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Common law systems are considerably more complicated than simplified descriptions suggest, with court decisions only binding within specific jurisdictions, and some courts having more power than others. Common law still has practical applications in areas such as contract law and the law of torts.
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The spread of the English legal system
The English legal system, or common law, was established in the centuries following the Norman Conquest in 1066. It was created in the King's Court (Curia Regis), a single royal court set up for most of the country in Westminster, near London. This court system, established by Henry II, curbed the power of canonical (church) courts, bringing him into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury.
The common law system established a unified legal system, gradually replacing local folk courts and manorial courts. It was common to all the king's courts across England, and it was administered by the king's courts, deriving from ancient usage and embodied in case reports. The common law was largely created in the period after the Norman Conquest, though it drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs.
England spread its common law system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies, which was continued by the British Empire. Many former colonies, such as Ghana, still retain the common law system today. These systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
The English legal system also spread to the colonies settled under the Crown of England and later the United Kingdom, including the United States, Canada, Australia, New Zealand, South Africa, Singapore, and Israel. These colonies developed their legal systems independently after gaining independence from the United Kingdom.
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The role of judges and legislators
The common law system, which originated in England after the Norman Conquest in 1066, is a body of law derived from judicial decisions and procedural remedies rather than statutes or constitutions. It established a unified legal system across the country, gradually replacing local folk and manorial courts.
Judges and legislators play distinct but interconnected roles in the common law system. Judges are primarily responsible for interpreting and applying the law, resolving disputes, and establishing precedents that guide future decisions. They act as neutral arbiters, deciding cases based on the evidence and arguments presented by the opposing parties without actively investigating or reframing the issues. Judges also have the power to invalidate legislative provisions and establish new precedents in the absence of clear legislative guidance.
In contrast, legislators are responsible for creating and amending laws. They hold the executive branch accountable, observe and steer governing actions, and have the authority to amend budgets. Legislators can delegate their legislative power to administrative or executive agencies, and they may also codify existing common law, create new causes of action, or overrule common law through new legislation.
In the early stages of common law development, judges played a more significant role in shaping the law, as the system was primarily based on judicial decisions and precedents. Over time, as legislation became more comprehensive, the role of legislators expanded, and the courts operated within narrower limits of statutory interpretation.
In an adversarial system, such as that used in common law, the parties involved rely on judges to act as neutral arbiters, deciding on the issues presented without actively investigating or reframing them. Judges in common law systems also have the power to raise new issues, perform independent research, and establish precedents that guide future decisions in similar cases.
The role of judges in common law systems is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This principle emphasizes the importance of following precedents established by previous decisions. When a similar case has already been resolved, judges typically align their reasoning with the precedent to ensure consistency and predictability in the law.
In summary, while legislators create the laws, judges interpret and apply them, resolving disputes and establishing precedents that guide future decisions. The interplay between these roles is essential to the functioning of the common law system, ensuring that laws are applied fairly and consistently while also adapting to new circumstances and societal changes.
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The impact on the legal system of former colonies
The common law system, which originated in England following the Norman Conquest in 1066, established a unified legal system that supplanted local folk and manorial courts. England spread this system across its colonies, including Wales, Ireland, and overseas territories, a practice continued by the later British Empire. Many former colonies, including those in Africa, continue to retain the common law system today.
The impact of the common law system on the legal systems of former colonies has been significant and complex. On the one hand, the common law system has provided a foundation for legal frameworks in these countries, shaping their judicial processes, precedents, and styles of reasoning. Approximately one-third of the world's population lives in jurisdictions where common law is applied, either in pure or mixed legal systems.
However, the imposition of the common law system during the colonial era has also been criticised as a form of cultural imposition and a tool for maintaining colonial rule. In some former colonies, efforts have been made to replace or modify the colonial-era legal systems and institutions to assert independence and self-governance. For example, Ghanaian legislators eliminated the repugnancy clauses in their criminal code soon after independence, as they were considered offensive to their own laws.
The legacy of colonialism in the legal systems of former colonies is complex and multifaceted. While some aspects of the common law system may persist, they can also be influenced by indigenous legal traditions, religious law, and other legal frameworks. Additionally, the specific impacts vary depending on the historical context, the colonising power, and the unique circumstances of each colony.
In conclusion, while the common law system has had a lasting impact on the legal frameworks of former colonies, the ongoing process of adapting, rejecting, or integrating these legal traditions is an essential aspect of post-colonial legal development and the pursuit of independence from colonial legacies.
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Frequently asked questions
The common law system was established in the early Middle Ages in the King's Court (Curia Regis).
The common law system was established in England.
The common law system is a body of unwritten laws based on legal precedents established by the courts.
Many former colonies of the British Empire retain the common law system today, including Australia, Canada, Hong Kong, India, New Zealand, and the United States.
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