Gavin Howe
The US common law system has its roots in English common law, which originated in the early Middle Ages in the King's Court, a single royal court based in Westminster, London. The English common law was largely created after the Norman Conquest of 1066, evolving from local customs and law varying in each locality into a system that was common throughout the country. This system, based on judicial decisions and unwritten laws, has been administered by the courts of England since the Middle Ages and has influenced the legal systems of the United States and other Commonwealth countries. While early American courts often cited contemporary English cases, they gradually developed their own principles, with English legal materials playing a lesser role by the mid-19th century.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Location | Westminster, near London |
| Nature | Procedural remedies, not substantive rights |
| Development | Largely created after the Norman Conquest of 1066 |
| Basis | Local customs and law, with influence from the Church |
| Modern Practice | Adjudication as application of precedent derived from case law |
| Influence | The legal systems of the United States and most Commonwealth countries |
| Distinction | In contrast to civil law, common law is unwritten and based on precedents |
| Court System | Federal and state courts, with state law usually developed through case law |
| Challenges | Difficulty in enforcing constitutional rights of criminal suspects and convicts |
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What You'll Learn
US common law's medieval English origins
The US common law has its origins in the English common law system, which took shape in the early Middle Ages. During this period, England was governed by a set of customs and traditions that varied across different localities. The English common law, also known as the "Curia Regis", was established in the King's Court at Westminster, near London. It served as a single royal court for most of the country.
Initially, the English common law did not encompass substantive rights but focused on procedural remedies. Over time, the evolution of these remedies led to the contemporary system, wherein rights take precedence over procedures. Until the late 19th century, the English common law was predominantly shaped by judges rather than legislators. The law underwent significant development following the Norman Conquest of 1066, building upon the existing traditions and customs of the Anglo-Saxons, who were influenced by the legal practices of the Germanic peoples of northern Europe.
Medieval English law, as exemplified during the time of Magna Carta, was characterised by the interplay between royal authority and the interests of various social groups. The Magna Carta, in its various iterations, reflected political negotiations and the desire to protect the rights of landowners and heirs of crown vassals. This period also witnessed the transition from trial by ordeal to a system that relied on juries for issuing felony verdicts.
The influence of the English common law extended beyond England, shaping the legal systems of countries within the Commonwealth, including the United States. This influence resulted in the adoption of certain legal principles and practices in these countries, contributing to the development of their respective legal frameworks.
The US common law, building upon its medieval English origins, evolved to incorporate unique characteristics. It is important to recognise that while the foundational elements of English common law played a significant role, the US common law continued to develop and adapt to meet the specific needs and contexts of the United States as a distinct legal jurisdiction.
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The role of precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has evolved from English common law, which originated in the early Middle Ages in the King's Court (Curia Regis). Over time, a rule known as stare decisis, or precedent, developed, whereby judges were bound to follow the decisions of earlier judges in similar cases. This replaced the pre-Norman system of local customs and laws that varied by locality with a system that was common throughout the country, i.e., "common law".
The modern practice of applying case law as precedent began with Jeremy Bentham's critique of the common law. Bentham's ideas led to the obsolescence of the declaratory theory of common law that prevailed in Blackstone's era, which was based on declaratory statutes rather than judge-made law.
In the United States, common law has been influenced by English legal materials, especially in the early years after the Revolution when American courts did not have a substantial body of their own principles and precedents to draw from. However, over time, American courts developed their own principles and began to cite English precedents less frequently.
While precedent is important in common law, it is not static and can be overturned or changed. Past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This can occur when past decisions are seen as outdated or biased, and popular thought or civil legislation changes the interpretation of the law.
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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)
The influence of Roman law
US common law, or the common law of England, 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 was developed by judges rather than legislators, and over time, the concept of stare decisis or precedent emerged, where a judge would be bound to follow the decision of an earlier judge.
While common law is relatively immune from Roman influence, there are some similarities between the two systems, particularly when comparing the formative periods of both. For instance, in both systems, a plaintiff could only bring an action by obtaining a specific document from a magistrate that identified the type of claim being asserted. This was the formula granted by the praetor in Rome and the writ granted by the Chancellor in England.
Another similarity lies in the division of legal actions into two stages. The first stage was dedicated to identifying the legal issue, while the second focused on providing proof and deciding in favor of one of the parties.
Additionally, both systems recognized two distinct bodies of law: traditional rules that were rigid and challenging to change, and a more flexible set of rules based on fairness and justice. In Rome, these were administered by the praetor, while in England, separate courts applied common law and equity.
The impact of Roman law on English common law decreased significantly after the age of Bracton. However, Bracton's use of Roman divisions of actions, such as "in rem" and "in personam," had a lasting effect. These divisions laid the foundation for the revival of Roman law structural concepts in the 18th and 19th centuries, as seen in Blackstone's Commentaries on the Laws of England.
Today, the influence of Roman law can be observed in the systematic divisions of the law into property, contract, and tort, which are present in both civil law and common law.
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Common law vs civil law
Common law, which originated in England in the early Middle Ages, is a legal system that is largely based on judicial decisions and precedent. It is the prevailing legal system in former British colonies or protectorates, including the United States. In a common law system, judicial decisions are generally binding and can only be overturned by a higher court or through legislation. This system is less prescriptive, with fewer provisions implied in contracts, and greater freedom of contract.
In contrast, civil law is rooted in the Roman Empire and was later codified and disseminated in the 19th century, notably with the Napoleonic Code in France and the Bürgerliches Gesetzbuch in Germany. Civil law systems rely on comprehensive legal codes as their primary source of law, rather than judicial precedent. While civil law is the most common legal system globally, practised in about 150 countries, it is notably different from common law in its approach to precedent and contractual provisions.
One key difference between common law and civil law is their treatment of precedent. Common law systems heavily emphasise judicial precedent, where judges are bound to follow the decisions and interpretations of previous judges in similar cases. This concept, known as stare decisis, forms the basis of common law and ensures consistency and predictability in legal decisions. In contrast, civil law systems give less weight to precedent, and civil law judges are not bound by previous judicial decisions to the same extent.
Another distinction lies in their approach to contracts. Common law systems generally have fewer provisions implied in contracts, emphasising the need to explicitly set out all terms governing the relationship between the contracting parties. This provides clarity and certainty but may result in longer and more detailed contracts. On the other hand, civil law systems tend to imply more provisions into contracts, allowing for greater flexibility and the ability to remedy ambiguities through operation of law. As a result, contracts in civil law jurisdictions may be shorter and less exhaustive.
In terms of infrastructure projects, a common law system may require more specific legislation to address certain restrictions or sector-specific requirements. Governments may need to enact laws to protect citizens' rights or ensure fair practices, such as prohibiting service providers from cutting off essential utilities for non-payment. In civil law systems, these protections may already be implied by the law, providing more flexibility for governments to promote infrastructure development.
In summary, common law and civil law systems differ significantly in their historical origins, reliance on precedent, and approach to contracts and legislation. Common law, prevalent in former British colonies, emphasises judicial decisions and stare decisis, while civil law, practised in a majority of countries, relies on comprehensive legal codes and offers more flexibility in contractual interpretations and infrastructure project regulations.
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Common law in modern times
US common law originated in medieval England, specifically in the early Middle Ages in the King's Court (Curia Regis). It was a single royal court set up for most of the country at Westminster, near London. The common law of England was largely created in the period after the Norman Conquest of 1066.
In modern times, common law is a body of unwritten laws based on legal precedents established by the courts. It is also referred to as case law or judge-made law. The term "judge-made law" is attributed to Jeremy Bentham, who criticised the legitimacy of common law, arguing in favour of codification and narrow judicial decisions. Common law is based on the idea of stare decisis, or precedent, where a judge is bound to follow the decision of an earlier judge if the two cases have similar facts. This allows for some freedom of interpretation, which becomes increasingly important as technology evolves and its presence in our lives grows.
Common law still has practical applications in various areas of law, such as contract law and the law of torts. It is particularly useful in deciding unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. For example, in the United States, common law has been used to interpret and determine the boundaries of law in relation to the US Constitution, legislative statutes, and agency regulations.
The legal systems of the United States, India, and most Commonwealth countries have evolved from English common law. These countries often adopt pre-independence common law as the default law due to its extensive and predictable nature.
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Frequently asked questions
US common law is derived from English common law, which originated in the early Middle Ages in the King’s Court (Curia Regis).
Common law is a body of unwritten laws based on legal precedents established by the courts. It is contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators.
Common law came to the US via English legal materials used by lawyers and judges in the years following the American Revolution. Over time, American courts developed their own principles, but English law provided an important foundation.
Common law is based on the idea of stare decisis, or precedent, where judges are bound to follow the decisions of earlier judges in similar cases. This helps to establish consistent outcomes by applying the same standards of interpretation.
Common law is contrasted with statutory law, which is the written law enacted by a governmental body. Common law is created by judges and evolves over time through judicial decisions and interpretations.
