Kara Sears
The common law system, which is deeply rooted in the principle of stare decisis, or to stand by things decided, originated in England during the Middle Ages. The English common law system, which has been administered by the common-law courts of England since the Middle Ages, was largely created after the Norman Conquest of 1066. The period also saw the influence of Roman law, with Justinian's Institutes being studied by English lawmakers. The 12th century saw a shift from local, informal power arrangements to formal government, with the expansion of royal justice under King Henry II. This expansion of royal justice, which emphasised written documentation and the peaceful resolution of disputes, came to be known as the 'Common Law'.
| Characteristics | Values |
|---|---|
| Time period | Late 1100s |
| Key figure | Henry II |
| Textbook | Glanvill |
| Textbook writer | Glanvil (speculated to be written by Hubert Walter) |
| Law type | Judicial precedent, judge-made law, case law |
| Law basis | Court decisions, precedent, previous rulings |
| Law influence | Roman law, Canon law, Civil law |
| Law influence time period | 12th and 13th centuries |
| Law influence location | Northwestern Europe, England |
| Law implementation | Written documentation, local juries, clear hierarchy of courts |
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What You'll Learn
The influence of Roman law
The common law system in England, which has directly influenced that of Wales and Ireland, and partially influenced Scotland's distinct legal system, originated in the early Middle Ages, largely taking shape after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had a set of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, the church played a large part in government, and crimes were treated as wrongs for which compensation was made to the victim.
Additionally, in both Roman and English society, there was a need for remedies beyond monetary damages, which were provided by the praetor in Rome and the Chancellor in England. The fifth similarity is the existence of two distinct bodies of law in each system: 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 the ius honorarium of the praetor and the ordinary and extraordinary jurisdictions, while in England, they were administered by separate courts applying common law and equity.
Despite these similarities, it is important to note that common law is relatively immune from Roman influence compared to civil law, which is based on Roman law. The differences between classical Roman law and common law are significant, and direct comparisons between their structures and formative periods may lead to misunderstandings of the two systems and legal development in general.
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The Norman Conquest
The 12th century was a transformative era for legal education in England, with Roman law, including Justinian's Institutes and Corpus Juris Civilis, being taught to English lawmakers. This legal knowledge, combined with the influence of Canon law and the training of lawyers and judges in ecclesiastical law, facilitated the creation of a rational and systematic body of law from the diverse and conflicting customs of the time. Glanvil, a 12th-century scholar, played a pivotal role in this process by documenting the procedures for these new legal forms, providing future lawyers and judges with a practical guide.
The common law system, also known as judge-made law or case law, stands in contrast to statutory law or civil law, which is prevalent in continental Europe. Common law is characterised by its reliance on judicial precedent and stare decisis, where courts follow the precedents established by previous decisions. This gives common law its malleable nature, allowing it to adapt to changing social, legal, and political philosophies over time.
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The role of the church
In the early Middle Ages, following the Norman Conquest of 1066, England's legal system was influenced by the reintroduction of continental ideas, including Roman legal concepts. This period marked the emergence of common law as a unified legal system, gradually replacing local folk courts and manorial courts. The influence of Canon law, which was closely tied to the church, played a role in preserving and integrating these Roman legal concepts into the English legal system.
During the 12th and 13th centuries, there were significant advancements in the development of common law. Notably, most lawyers and judges in 12th-century England were churchmen educated in Canon and Civil law. This religious and legal training equipped them with the knowledge and skills to create a structured and rational legal system from the diverse and often conflicting customs and traditions of the time. The influence of Canon law, with its own set of principles and norms, likely influenced the development of common law and shaped its characteristics.
The church's involvement in education and scholarship also contributed to the development of common law. For example, the book "Glanvil," written in Latin by a churchman, provided a comprehensive guide to the procedures and practices of the emerging legal system. It covered various topics, including land law, litigation processes, and the distinction between civil and criminal pleas. This treatise became a valuable resource for future lawyers and judges, shaping their understanding and application of the law.
The influence of the church on the development of common law extended beyond the direct involvement of churchmen as lawyers and judges. The church's role in governance and its integration with Canon law meant that it had a significant influence on the legal system's overall development and character. The church's presence in governance, alongside the application of Canon law, helped shape the legal principles and practices that formed the foundation of common law.
In summary, the role of the church in the development of common law was significant. The presence of churchmen as lawyers and judges, their training in Canon and Civil law, and the influence of Canon law itself contributed to the formation and characteristics of common law. Additionally, the church's involvement in scholarship and education, as exemplified by the "Glanvil" treatise, provided a practical guide to the emerging legal system.
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Local customs
The common law system, also known as judicial precedent, judge-made law, or case law, is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This system of law emerged in England in the 11th century with the establishment of the King's Courts by William the Conqueror.
These courts, in deciding local disputes, applied local customs, which over time evolved into rules that formed the basis for subsequent courts' decisions on analogous disputes. The common law evolved as different types of disputes and customs emerged. It was the primary body of law until the 17th century when the British Parliament expanded its law-making powers, resulting in more Acts of Parliament.
The common law of England was largely created following the Norman Conquest of 1066, which reintroduced continental and Roman ideas. The Anglo-Saxons, particularly after the reign of Alfred the Great (871), had developed a set of rules resembling those used by Germanic peoples in Northern Europe. Local customs governed most matters, and the church played a significant role in governance. The 12th and 13th centuries witnessed significant advancements in the development of common law, coinciding with the Bologna revival of Roman law, which reached England during this period.
The 12th century in England was marked by the reign of Henry II, during which the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. This establishment of permanent institutions was a pivotal part of Henry II's extensive reorganisation of royal justice, which expanded geographically and socially, encompassing all classes from freemen to the highest-ranking nobles.
The common law system is characterised by its heavy reliance on judicial precedent or case law to determine the applicable law in a given situation. This system recognises tradition while also incrementally adjusting to evolving social values and understandings. Common law is often contrasted with the civil law traditions of continental Europe, which are based on comprehensive 'legal codes' that theoretically provide judges with less discretion in deciding cases.
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Judicial precedent
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that gives great weight to precedent—past similar rulings made by judges—when deciding new cases. It is a system of law primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in the principle of stare decisis, a Latin phrase that means "to stand by things decided". This means that courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The English common law system has its roots in the Middle Ages, after the Norman Conquest of 1066. It was during this time that the English legal system began to be influenced by Roman law, which was being taught and studied by English lawmakers. The 12th century saw a shift from local, informal power arrangements to formal government, with the establishment of permanent royal courts in Westminster by King Henry II. This expansion of royal justice, which emphasised written documentation and a clear hierarchy of courts, became known as the Common Law.
The key feature of common law is its heavy reliance on judicial precedent. Judicial decisions tend to recognise tradition while also adjusting to evolving social values and popular understandings. This makes common law a sophisticated type of customary law, despite its use of written documentation. Common law is often contrasted with civil law traditions, such as those found in continental Europe, which are based on comprehensive 'legal codes' and leave judges with less discretion in deciding cases.
In a "case of first impression", where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. Common law courts are not absolutely bound by precedent and can, with good reason, reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. This is a key difference between common law and civil law systems, where a judge's decision interpreting a code is typically not binding in later cases involving different parties.
Common law promotes stability and consistency in the legal system because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. This stability is one of the benefits of common law systems, which are used by many countries today, including the United States, Canada, India, and Australia, and in former British colonies.
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Frequently asked questions
Common law was not invented by a single person, but rather emerged in England during the Middle Ages. It was influenced by Roman law, which was studied by English lawmakers in the 12th century.
Common law is a legal system that relies on judicial precedent, also known as case law or judge-made law, to guide decisions. It is based on previous rulings made in similar cases and is deeply rooted in the principle of stare decisis, which means "to stand by things decided".
Common law systems, prevalent in English-speaking countries, rely on judicial precedent and written documentation. In contrast, civil law systems, common in continental Europe, are based on comprehensive legal codes and statutes, leaving judges with less discretion in deciding cases.
Common law initially emerged as a conservative force, preserving customary norms in areas such as crime, family, property, and inheritance. Over time, it evolved to emphasise written documentation, peaceful dispute resolution, and the use of local juries. Today, common law systems are known for their stability and consistency, as decisions are based on previous case law rather than subjective viewpoints.
Common law forms the basis of the legal systems in several countries, including the United States, Canada, India, and Australia. Many former colonies of the British Empire also retain the common law system. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
