Anaya Nolan
Common law is a legal system primarily derived from judicial decisions rather than written statutes, originating in England in the 12th century under King Henry II. It is based on custom and general principles embodied in case law, serving as precedent and applied to situations not covered by statute. Common law is a dominant legislative system worldwide, playing a significant role in the legal frameworks of countries like the United States, Canada, India, and others. It stands in contrast to civil law, which is more widespread in continental Europe and is codified and based on legislative decisions.
| Characteristics | Values |
|---|---|
| Origin | England in the 12th century under King Henry II |
| Basis | Judicial decisions, custom, and general principles |
| Application | Civil cases |
| Features | Adversarial process, adaptability, emphasis on written documentation, peaceful resolution of disputes, use of local juries, clear hierarchy of courts |
| Influence | Legal systems of the United States, Canada (excluding Quebec), India, most Commonwealth member states, and previously colonial territories of Spain and Mexico |
| Religion | Influenced by Christianity, but not controlled or imposed by it |
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The King's Court
English common law, which has been administered by the common-law courts of England since the Middle Ages, originated in the early Middle Ages in the King's Court (Curia Regis). This was a single royal court set up for most of the country at Westminster, near London. The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system.
The Court of King's Bench was created in the late 12th to early 13th century from the Curia Regis, which was composed of those advisers and courtiers who followed the King as he travelled around the country. This was not a dedicated court of law, but rather one of the three central administrative bodies, along with the Exchequer and Chancery. In concert with the curia regis, eyre circuits staffed by itinerant judges dispensed justice throughout the country, operating on fixed paths at certain times.
The Court of King's Bench initially followed the monarch on his travels. To remedy the administrative problems this caused, a central "bench" was established; the Court of Common Pleas, initially split from the Exchequer of Pleas, received official recognition in the Magna Carta so that common pleas could be heard in "some fixed place". Thus, there were two common law courts: the curia, which followed the King, and the Common Pleas, which sat in Westminster Hall. The curia eventually became known as the King's Bench, with the King himself required to be present for the court to sit.
The first records of an independent King's Bench come from 1234, when distinct plea rolls are found for each court. Modern academics give 1234 as the founding date for the King's Bench as a fully independent tribunal, considering it part of the law reform which took place from 1232 to 1234. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421.
The legal reforms carried out by Henry II had a profound effect on the English legal system. Henry II, who felt strongly about a son's right to his inheritance, developed the writ of mort d’ancester, which forced the lord to allow the heirs of a deceased tenant to take seisin. This was the possession of land held from a lord after doing homage. Originally, the sons of a landholder did not necessarily have the right to seisin after their father’s death, as it was a matter for the lord to decide.
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Royal justice
English common law, which has also been adopted in the United States and most Commonwealth member states, originated in the early Middle Ages in the King's Court (Curia Regis). During this time, the king of England dispensed justice, judging cases himself with the counsel of his curia regis, a body of aristocrats and prelates who assisted in the administration of the realm. The king could also delegate this power to others.
Henry II is credited with institutionalizing common law by establishing a unified system of law "common" to the country. He achieved this by incorporating and elevating local customs to the national level, eliminating arbitrary remedies, and reinstating a jury system. Citizens under oath investigated legitimate criminal charges and civil claims, and the jury reached a verdict based on shared local knowledge rather than the presentation of evidence. Henry II sent judges from his Curia Regis to hear disputes across the country and return to the court.
The Royal Courts of Justice, also known as the Law Courts, is a court building in Westminster that houses the High Court and Court of Appeal of England and Wales. The building was designed by George Edmund Street in the Victorian Gothic Revival style and was completed in the 1870s. It is one of the largest courts in Europe and is a Grade I listed building.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Judicial decisions
Common law is a legal system primarily derived from judicial decisions or judge-made law rather than written statutes. It originated in England in the 12th century under King Henry II, when an expanded system of royal justice emerged to replace the predominantly local, informal power arrangements typical of customary law. This shift towards formal government and centralised control over governance and justice was a key development in the creation of common law.
The English common law was largely created in the period after the Norman Conquest of 1066, with the Anglo-Saxons having previously developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs and the church played a significant role in this early legal system. However, it was under Henry II that the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster. This marked a significant expansion of royal justice, as the king's court had previously followed the king's movements rather than being based in a single location.
Henry II issued a Declaration at the Assize of Clarendon, which stated that judges should be sent out across the country on "circuits" to hear cases and apply the law made by judges at Westminster. This established the precedent of judicial decisions shaping the law, with judges' rulings influencing future cases and providing consistency and fairness across similar legal situations. This adaptability of common law allows judges to distinguish between cases based on their specific circumstances, potentially leading to the development of new legal principles.
The reliance on judicial opinion is a defining characteristic of common law systems, providing a robust framework for commercial systems in countries such as the United Kingdom and the United States. The ability to predict judicial outcomes based on precedent gives parties, especially commercial entities, the freedom to operate within the boundaries of the law with greater confidence. This predictability is a key advantage of common law over civil law, which is more rigid and dependent on legislative decisions.
Common law, as a body of customary law, has evolved over time through judicial decisions and case law, with England's first distinct legislative institution emerging only with the establishment of Parliament under Edward I (1272-1307). This evolution of common law has been influenced by various factors, including the expansion of the freemen social class, the decline of feudalism and manorialism, and the influence of Christianity and ecclesiastical laws. Today, common law forms the basis of the legal systems in several countries, including the United States, Canada (excluding Quebec), India, and others, showcasing its enduring impact and global reach.
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Influence on the US
Common law, which originated in England in the 12th century under King Henry II, has had a significant influence on the legal system of the United States. It is a body of law based on custom and general principles embodied in case law, serving as precedent and applied to situations not covered by statute.
The US legal system remains firmly within the common-law tradition brought to the North American colonies from England. The first English colonists brought the common law system with them, claiming it as their birthright. After the American Revolution, common law was adopted by each of the states and the national government of the new nation. When new states were formed, they also adopted the common law system, either by express provision or judicial decision.
The US courts are not required to adhere to the decisions of English common law courts, but they may look to them for guidance, as well as to the decisions of other states in the Union. This reliance on judicial opinion is a strength of common-law systems, contributing to robust commercial systems in the US. As Justice Brandeis famously expressed, "in most matters, it is more important that the applicable rule of law be settled than that it be settled right." This ability to predict legal outcomes gives more freedom to those navigating the boundaries of the law.
The rulings of many important British cases have established long-lasting precedents and shaped the US legal system. For example, in the English contract law case of Carlill v Carbolic Smoke Ball Company (1893), the ruling established that an advertisement could legally constitute a contractual offer. Another example is Regina v Dudley & Stephens (1885), where a judge ruled that two shipwrecked sailors who killed and ate their weaker crewmate were guilty of murder, establishing that necessity is not a defence for murder.
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Common law today
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions. The presiding judge determines which precedents to apply when deciding on a new case.
Today, common law is practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. The US operates under a dual system of both common and civil law. The courts, for example, operate under common law. The concept of common-law marriage is an example of common law in action today, where couples that are not officially married are acknowledged similar rights to those with a marriage license.
Common law decisions today reflect both precedent and policy judgments drawn from economics, the social sciences, business, decisions of foreign courts, and more. Judges draw on experience and learning from everyday life, from other fields, and from other jurisdictions.
Canada has separate federal and provincial legal systems, with each province and territory considered a separate jurisdiction with respect to case law. Canada's federal system avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.
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Frequently asked questions
Common law originated in England in the 12th century under King Henry II.
Common law is a legal system primarily derived from judicial decisions rather than written statutes.
Common law is based on judicial decisions and evolves through the rulings of judges in court cases, while civil law is codified and based on legislative decisions.
Common law plays a significant role in the legal framework of several countries, including the United States, Canada (excluding Quebec), India, and members of the Commonwealth (formerly the British Commonwealth of Nations).
Common law has a long and complex history. It originated in the early Middle Ages in the King's Court (Curia Regis) and was expanded in the 12th century under King Henry II. It has since been adopted and adapted by various countries and legal systems around the world.
