Cecily Zamora
Common law is a legal system that originated in England during the reign of King Henry II in the 12th century. It replaced the pre-Norman system of local customs and laws that varied across localities with a unified system of law common to the country. This was achieved by incorporating and elevating local customs to the national level, eliminating arbitrary remedies, and reinstating a jury system. Common law is based on judicial decisions and precedents, with judges following earlier rulings and caselaw when dealing with similar cases. It stands in contrast to civil law, which is widespread in continental Europe and derived from Roman law. Common law has evolved and spread, forming the basis of the legal systems in the United States, Canada, India, Australia, and most Commonwealth countries.
| Characteristics | Values |
|---|---|
| Reasoning | Casuistry or case-based reasoning |
| Application | Civil cases, not criminal cases |
| Purpose | Compensating someone for wrongful acts (torts) and developing the body of law recognizing and regulating contracts |
| Procedure | Adversarial system |
| Origin | England, in the early Middle Ages in the King's Court (Curia Regis) |
| Basis | Customary law |
| Influenced | Legal systems in the United States, India, Pakistan, Bangladesh, most Commonwealth member states, and Ireland |
| Influenced by | Local customs and law |
| Type of law | Unwritten, based on legal precedents established by the courts |
| Sources | Judicial decisions, opinions, and interpretations from judicial authorities and public juries |
| Purpose of sources | Inspiration for new legislation |
| Precedent | Stare decisis, a history of judicial decisions which form the basis of evaluation for future cases |
| Case-by-case traditions | Individual jurisdictions |
| Marginalization | Common law has led to unfair marginalization or disempowerment of certain groups |
| Standardization | Common law promotes stability and consistency in the U.S. legal justice system |
| Flexibility | Lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different |
| Common law marriage | Legal framework that may allow couples to be considered married without having formally registered their union |
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What You'll Learn
The influence of King's Court
The influence of the King's Court on the creation of common law was profound. The King's Court, or the court of the English kings, was established in the centuries following the Norman Conquest in 1066. This court system gradually replaced the local folk courts and manorial courts, creating a unified legal system across England. The name "common law" reflects this unity, as it was common to all the king's courts across the country.
One of the most significant contributions of the King's Court to common law was the development of legal precedent, also known as stare decisis ("to stand by things decided"). This principle holds that courts should follow precedents established by previous judicial decisions. When resolving similar cases, courts typically align their reasoning with these precedents. However, judges are empowered to establish new precedents in "cases of first impression" without clear legislative guidance.
The King's Court also played a crucial role in the evolution of property law, particularly regarding inheritance. Henry II, who reigned from 1154 to 1189, implemented legal reforms that strengthened the rights of heirs to inherit property. He introduced the writ of mort d'ancestor, which compelled lords to allow the heirs of deceased tenants to take possession of land (seisin). This reform undermined lordly power and contributed to the development of modern property rights.
Additionally, the King's Court contributed to the expansion of legal access and the involvement of local communities in the prosecution of crimes. Henry II established the Grand Jury, which consisted of local lawful men cooperating with royal judges to prosecute crimes. This system brought legal proceedings closer to the people and harnessed local knowledge, particularly in matters of land holdings and ownership disputes.
The influence of the King's Court extended beyond England. The English common law system was later spread to Wales, Ireland, and overseas colonies, influencing the legal traditions of these regions. The principles of common law, including its reliance on judicial precedent, have also been adopted and adapted by other countries, contributing to the development of robust commercial systems in jurisdictions like the United States.
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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 need for a unified system of law
The common law system was created by King Henry II, who established a powerful and unified court system, which curbed the power of canonical (church) courts. This was part of a wider reorganisation of royal justice, which expanded geographically and socially, across all classes. The king's objective was to preserve public order, but it was also profitable—cases and fines could generate "great treasure" for the government.
The common law system was based on legal precedents established by the courts, which were recorded in reports of decided cases. This allowed for consistency in the application of the law, as lower courts were bound by the decisions of higher courts. This consistency and stability were particularly important for the development of the rule of law, as it reduced the potential for bias and ensured that similar cases were treated similarly.
The common law system also allowed for flexibility and evolution, as judges could modify or deviate from precedents if they were outdated or if the current case was substantially different. This allowed the law to adapt to changing social values and understandings, and for new legislation to be enacted when necessary.
The English common law system has had a significant influence on the legal systems of other countries, particularly those that were formerly part of the British Empire, such as India, Pakistan, Bangladesh, and the United States.
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To preserve public order
The creation of common law was driven by the need to preserve public order. In the early Middle Ages, the English common law system originated in the King's Court (Curia Regis) near London, marking a shift from local, informal power arrangements to a more centralised system of governance. Henry II, the first Plantagenet king, played a pivotal role in institutionalising common law. He established a unified court system, curbing the power of canonical (church) courts and creating a consistent legal framework across the country. This replaced the previous system of local customs and laws that varied across localities.
The motivation behind this unification was to maintain public order and provide a standardised system of justice. Henry II's reforms included the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, which expanded access to justice across geographic and social boundaries. This expansion of royal justice, known as the 'Common Law', aimed to provide a uniform set of laws and procedures that applied throughout the country.
The common law system emphasised written documentation, particularly the use of royal 'writs', which were written orders from the king used to initiate lawsuits. These writs provided a standardised approach to legal proceedings and contributed to the goal of preserving public order. By providing a clear framework for legal disputes, the use of writs helped to ensure that justice was administered consistently and predictably, reducing the potential for arbitrary interpretations and applications of the law.
Additionally, the common law system introduced by Henry II incorporated the use of local juries to establish both law and fact. This aspect of the common law system was designed to involve a broader cross-section of society in the legal process, promoting a sense of civic participation and consensus in decision-making. The involvement of local juries also helped to ensure that legal decisions were informed by the customs and perspectives of the communities they served, further contributing to the preservation of public order.
Moreover, the common law system's reliance on judicial precedent, or case law, as a means of determining legal principles and resolving disputes, played a crucial role in maintaining public order. By drawing on past decisions and established interpretations, common law provided a degree of consistency and predictability in legal outcomes. This consistency helped to establish clear expectations and norms within society, fostering an environment where individuals could reasonably anticipate the legal consequences of their actions.
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To compensate for wrongful acts
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 institutionalized opinions and interpretations from judicial authorities and public juries. It is applied in civil cases to compensate for wrongful acts known as torts, including both intentional torts and torts caused by negligence.
The common law system promotes stability and consistency in the legal justice system. It helps establish consistent outcomes by applying the same standards of interpretation. For example, in the 19th century, a plaintiff could not recover damages for a defendant's negligent production or distribution of a harmful instrumentality unless they had a contract. This prevented injured persons from suing any person peripherally involved.
Compensatory damages are designed to aid personal injury victims and come in three types: special, general, and wrongful death. Special compensatory damages, or economic damages, cover specific monetary losses directly tied to the injury, including medical expenses and lost wages. General compensatory damages require a persuasive presentation of evidence to establish the extent of the emotional and physical toll on the victim's life. Wrongful death damages apply when an individual loses their life due to someone else's negligence or intentional act, with damages going to the surviving family members.
While common law helps shape new legislation, it can also be superseded by statutes, which may codify existing common law, create new causes of action, or overrule the common law. In the United States, common law is not prevalent, but some states have statutes or allow for common-law marriage if certain requirements are met.
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The role of precedent
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.
The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions.
One of the most important roles of precedent is to resolve ambiguities in other legal texts, such as constitutions, statutes, and regulations. Precedents can also serve to illustrate points of law. However, not all precedents satisfy the rule of law. While precedents are important, they may not always provide a justificatory basis for reaching legally justified decisions.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
Common law was created to replace the pre-Norman system of local customs and laws that varied in each locality with a unified system of law that was common throughout the country.
Common law originated in the early Middle Ages in the King's Court (Curia Regis) in England. It was institutionalized by King Henry II in 1154 when he created a unified system of law that was common throughout the country.
Common law relies on judicial precedent, or case law, as a means of determining what the law is. Judges look to past decisions and institutionalized opinions from higher courts to determine which precedents apply to a particular case.
Common law is used in many countries that were formerly part of the British Empire, including the United States, India, Pakistan, Bangladesh, and most member states of the Commonwealth.
