Gavin Howe
The English common law system, which originated in the early Middle Ages in the King's Court, has had a significant influence on the legal traditions of English-speaking countries. This system, which is characterised by its heavy reliance on judicial precedent, was developed in the centuries following the Norman Conquest in 1066. The revival of Roman law in the 12th century, influenced by the Bologna revival, played a significant role in shaping English common law. While Jeremy Bentham criticised judicial lawmaking and advocated for codification, the English common law system has been a cornerstone of legal tradition in former British colonies, with the exception of those that adopted the civil law systems of their colonisers, such as Quebec, South Africa, and Sri Lanka.
| Characteristics | Values |
|---|---|
| Name of individual | Jeremy Bentham |
| What they argued in favor of | Codification and narrow judicial decisions |
| What they criticized | Judicial lawmaking |
| Example of a quote | Critics of judicial lawmaking are not always consistent |
| Other individuals associated with common law | Oliver Wendell Holmes, Pound |
| Countries that use common law | United States, United Kingdom, Canada, Australia, New Zealand, India, Pakistan, Ireland, South Africa, and many other countries and territories |
| Historical context | Early Middle Ages in the King's Court (Curia Regis) |
| Key features of common law | Heavy reliance on judicial precedent or case law |
| Comparison with civil law | Common law is more flexible and leaves judges with more discretion in deciding cases |
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What You'll Learn
The influence of Roman Law
Roman law denoted the legal system applied in most of Western Europe until the end of the 18th century, and it served as a basis for legal practice in Western continental Europe and its colonies, including Latin America and Ethiopia. English common law was influenced by Roman law, particularly in its Latinate legal glossary.
The Normans, who conquered England in 1066, spoke French and had developed customary law in Normandy. They had no professional lawyers or judges, so literate clergymen acted as administrators. Some of these clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, and the revived Roman law influenced English law, especially in the 12th and 13th centuries. Most lawyers and judges in 12th-century England were churchmen schooled in Canon and Civil law. This training enabled them to construct a rational and definite system of law out of the vague and conflicting mass of customs that made up English law.
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 was common to all the king's courts across England and drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs. The degree to which these traditions influenced common law is still debated.
In the 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law. However, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London.
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The Norman Conquest
Prior to the Norman Conquest, England's legal landscape was characterised by a multitude of local folk courts in the various shires and hundreds, each with its own practices and customs. Urban boroughs, merchant fairs, and large landholders also had their own courts, and the Anglo-Saxons had developed a set of rules similar to those used by the Germanic peoples of northern Europe. The church, adhering to canon law, also played a significant role in governance.
The Normans, who spoke French, brought with them their own customary law from Normandy. They did not have professional lawyers or judges but relied on literate clergymen as administrators. Some of these clergymen were familiar with Roman law and canon law, which would later influence English law. The Norman Conquest reintroduced continental ideas and Roman legal concepts to England, building upon the earlier Anglo-Saxon traditions.
Following the Conquest, the English common law began to take shape. It was named as such because it was common to all the king's courts across England and originated in the practices of these royal courts. The King's Court, or Curia Regis, was established at Westminster, near London, and served as the central royal court for most of the country. The common law developed over time, with judges playing a significant role in its evolution until the late 19th century.
The Magna Carta, written during the reign of King John, further emphasised the importance of common law. It aimed to safeguard the rights of different classes and included the famous Clause 39, which stated that "No free man shall be taken or imprisoned or disseised... except by the lawful judgment of his peers or by the law of the land."
English common law, with its heavy reliance on judicial precedent, has had a lasting influence on the legal traditions of English-speaking countries and colonies, shaping their legal systems and contrasting with the civil law traditions of continental Europe.
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English-speaking countries
The common law system, which originated in England, has been adopted by many English-speaking countries, including the United States (at both the federal level and in individual states and territories) and other Commonwealth countries. Any country that was previously colonized by England, Great Britain, or the United Kingdom typically follows the common law system, except those that were formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka, which follow the civil law system. Guyana and Saint Lucia have a mix of common law and civil law systems.
The English common law system has its roots in the early Middle Ages, specifically in the King's Court (Curia Regis) established after the Norman Conquest of 1066. The Normans brought with them continental ideas, including Roman legal concepts, and the influence of Canon law. The 12th and 13th centuries saw significant developments in common law, with lawyers and judges in 12th-century England often being churchmen educated in Canon and Civil law. This legal education enabled them to create a systematic body of law from the varied customs and traditions that existed previously.
English common law stood in contrast to the civil law systems of continental Europe, which were based on comprehensive legal codes that gave judges less discretion in interpreting the law. Common law, on the other hand, relied heavily on judicial precedent and case law, allowing for a more flexible interpretation of the law that could evolve with changing social values.
Over time, the English common law system spread beyond England and influenced the legal systems of other countries, particularly those with historical colonial ties to England. Today, many English-speaking and Commonwealth countries have adopted the common law system, adapting it to their specific contexts and legal traditions.
The influence of English common law in these countries has shaped their legal frameworks, judicial processes, and approaches to interpreting the law. It has contributed to the development of a common legal language and understanding among these nations, fostering a shared legal heritage that continues to evolve and adapt to the needs of each individual country.
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Judicial precedent
The English common law, which originated in the early Middle Ages in the King's Court (Curia Regis), has been a significant influence on the legal traditions of English-speaking countries. This common law, which was common to all the king's courts across England, was developed in the centuries following the Norman Conquest in 1066. The conquest reintroduced continental ideas, including Roman ones, and the influence of the church and canon law.
The key feature of English common law is its heavy reliance on judicial precedent, also known as case law. Judicial precedent refers to the previous judicial decisions or rulings made by judges in similar cases, which are used as a reference or guide for deciding current cases with similar circumstances. This means that judges in common law systems give significant weight to past cases and the principles established in those cases when interpreting the law and making decisions in new cases.
The use of judicial precedent in common law can be contrasted with civil law traditions, such as those in continental Europe, which are based on comprehensive legal codes that give judges less discretion in deciding cases. In common law, judges play a crucial role in shaping the law by interpreting and applying it to specific situations, recognising tradition, and adjusting to evolving social values and understandings. This process of judicial lawmaking has been criticised by some, such as Jeremy Bentham, who advocated for codification and narrower judicial decisions.
The United States, with the partial exception of Louisiana and Puerto Rico, and many other English-speaking or Commonwealth countries follow the common law system. This includes countries that were formerly colonised by England, Great Britain, or the United Kingdom, such as Guyana and Saint Lucia, which have mixed common law and civil law systems. The influence of English common law can also be seen in the legal systems of Ireland and Scotland, although Scotland has a mixed system that includes civil law influences.
The evolution of English common law has been a dynamic process, with influences from various sources. The 12th and 13th centuries saw significant developments, with lawyers and judges, often schooled in canon and civil law, constructing a rational and definite system of law from vague customs and traditions. The study of civil and canon law directly influenced the development of English common law until the end of the 13th century, after which local customs and judicial precedent played a more significant role.
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The King's Court
The English common law, which originated in the early Middle Ages, was born out of the King's Court, or Curia Regis, a single royal court established at Westminster, near London. This court system, which came into being in the centuries following the Norman Conquest of 1066, was common to all the king's courts across England, hence the name 'common law'.
The Norman Conquest brought about a revival of Roman legal concepts in England. The Normans, who spoke French, had developed a customary law in Normandy, which lacked professional lawyers or judges. Instead, literate clergymen, often familiar with Roman and canon law, acted as administrators. In the 12th and 13th centuries, lawyers and judges in England were predominantly churchmen, educated in canon and civil law. This legal training enabled them to construct a rational and definite system of law out of the vague and conflicting mass of customs that characterised English law at the time.
The English common law, which directly influenced the legal system in Ireland and, to a lesser extent, Scotland, was largely developed by judges rather than legislators until the late 19th century. As a result, it is heavily reliant on judicial precedent or case law, making it a sophisticated type of customary law.
The Magna Carta, written during the reign of King John, reveals the presence of strongly marked class distinctions in medieval society. It attempted to safeguard the rights of different classes according to their needs. The famous Clause 39 states:
> "No free man shall be taken or imprisoned or disseised (have property taken away from him) or outlawed or exiled or in any way ruined, nor shall we go or send against him, except by the lawful judgment of his peers or by the law of the land."
This clause underscores the importance of the common law in medieval England, ensuring that no freeman could be punished except in accordance with it.
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Frequently asked questions
England.
1066, after the Norman Conquest.
The King's Court (Curia Regis).
Civil Law traditions of continental Europe.
English-speaking countries or Commonwealth countries.
