Keith Mack
The common law is a body of customary law that has been administered by the common-law courts of England since the Middle Ages. It originated in the practices of the courts of the English kings following the Norman Conquest in 1066. The common law was not written down but was developed on a case-by-case basis, with judges making decisions based on earlier cases or precedents. The primary sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin. The emergence of England's common-law tradition during the 12th and 13th centuries formed the foundation of the legal systems of Britain and most of its colonies.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. |
| History | The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. |
| Purpose | To unify the recently conquered Anglo-Saxon population by restoring the laws of their last king, Edward the Confessor. |
| Focus | Case precedents rather than written statutes. |
| Influence | The common law system in England has directly influenced that in Ireland and partially influenced the distinct legal system in Scotland. |
| Development | Over time, judges based their rulings on previous cases, creating a body of law that was accessible and applicable to all subjects of the king, regardless of social class. |
| Property Law | The reforms concerning property law were based on the use of royal writs, or brief written orders from the king, to initiate lawsuits. |
| Monopoly on Violence | Writs helped outlaw virtually all non-royal acts of violence, giving the royal government a monopoly over legitimate violence. |
| Equal Treatment | The common law helped lay the foundation for a cohesive legal system that reinforced the principle of equal treatment under the law for all citizens. |
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What You'll Learn
Common law's emergence in England
The emergence of common law in England was a gradual process that took place over several centuries, particularly during the Middle Ages. It was influenced by various factors, including the Norman Conquest of 1066, the expansion of royal justice, and the development of a centralised government.
Following the Norman Conquest, England underwent a period of colonial rule, which led to changes in land allocation and the legal system. While the Anglo-Saxon law was not immediately replaced, the Norman conquerors centralised government, built up a bureaucracy, and maintained written records. This laid the foundation for the development of common law.
During the 12th century, there was a shift across northwestern Europe from predominantly local, informal power arrangements towards formal government organised along bureaucratic lines. This period also witnessed the expansion of royal justice, which later became known as the "Common Law". This term initially referred to the law that was uniform or "common" throughout the country, in contrast to the diverse regional or local laws. The emergence of common law was also influenced by the principles of stare decisis, which means "to stand by things decided". This principle established a precedent for courts to follow in similar cases, contributing to the uniformity of the law across the country.
The reign of King Henry II, the first of the Plantagenets, played a significant role in the development of common law. Henry II introduced legal reforms, replacing feudal and county courts with a unified body of common law. He also initiated early forms of jury trials, known as assizes, which replaced the old Germanic customary trials by ordeal or battle.
The treatise of Bracton, written during the reign of King Henry III, further contributed to the development of common law. Bracton sought to systematise and codify English common law, which had previously relied primarily on local customs. His work, described as the "crown and flower of Medieval jurisprudence," became the standard exposition of English law for centuries.
In summary, the emergence of common law in England was a complex and gradual process influenced by historical events, the expansion of royal justice, and the efforts of individuals like Bracton to systematise and codify the law. This evolution of the legal system contributed to the uniformity and predictability of the law across the country.
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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 Norman Conquest
The development of the common law system in England can be traced back to the centuries following the Norman Conquest. The term "common law" refers to the law that was common to all the king's courts across England. The doctrine of precedent, a key feature of common law, developed during the 12th and 13th centuries, with judicial decisions based on tradition, custom, and precedent.
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The role of written decisions
Written decisions in common law serve as a source of precedent for future cases. Judges refer to previous rulings, known as case law, to guide their decisions on similar matters. This creates a body of law that is accessible and applicable to all, ensuring consistency and predictability in legal outcomes. The doctrine of precedent, which developed in the 12th and 13th centuries, reinforced the importance of written decisions as a foundation for future rulings.
The plea rolls and Year Books from the Middle Ages are valuable sources of information on common law. These records, originally written in Latin, provide insights into the court proceedings and decisions of that time. Additionally, the use of royal writs, or written orders issued by the king, played a significant role in the development of common law. These writs, often in the form of fill-in-the-blank templates, enabled freemen to initiate lawsuits, particularly regarding property disputes, and contributed to the expansion of the common law system.
The written decisions of legal theorists, such as Ranulf de Glanville and Henry de Bracton, also influenced the common law tradition. While their treatises were not legally binding, they provided interpretations and analyses that guided judges and lawyers. Over time, the written decisions of judges became a crucial aspect of the common law system, contributing to its evolution and ensuring a standardised approach to legal matters across the realm.
In contrast to civil law systems, which are based on comprehensive written legal codes, common law is characterised by its reliance on precedent and customary practices. While civil law judges may have less discretion in deciding cases due to the presence of established legal codes, common law judges have the flexibility to interpret and apply previous rulings to new situations, allowing for incremental adjustments to evolving social values and understandings. The written decisions in common law, therefore, serve as a dynamic record of the law's development and adaptation to societal changes.
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Common law in contrast to civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England in the Middle Ages, following the Norman Conquest of 1066. Common law systems place great weight on precedent and consider prior court decisions as legally binding. The form of reasoning used in common law is known as casuistry or case-based reasoning.
In contrast, civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch as notable examples. Civil law is the most widespread legal system globally, practiced in approximately 150 countries. It is characterized by its reliance on legal codes that serve as the primary source of law. Civil law proceeds from abstractions, formulating general principles and distinguishing substantive rules from procedural rules. It considers case law secondary to statutory law and holds that judicial precedent is non-binding.
Another key difference lies in their geographical influence. Common law has evolved into the legal system found in the United States and most member states of the Commonwealth. In contrast, civil law is widespread in continental Europe and has influenced the legal traditions of many countries, including Japan, China, Taiwan, Korea, and several Islamic countries.
While common law values precedent, civil law focuses on written decisions. Civil law codes are regularly updated to maintain standardized codes, reduce bias, and ensure consistent application across cases. However, this constant change can make it challenging to refer to older precedents. Common law, on the other hand, may result in inconsistent interpretations across jurisdictions, as it allows for case-by-case traditions.
In summary, common law and civil law differ primarily in their reliance on precedent versus written decisions, their geographical influence, and their approaches to consistency and bias in legal interpretation.
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Common law's influence on other legal systems
Common law, which originated in England in the centuries following the Norman Conquest of 1066, has had a profound influence on the legal systems of many countries, particularly former British colonies and protectorates. The United States, for instance, inherited its common law system from England, and this system now forms the basis of the legal regimes of most former members of the British Commonwealth of Nations.
The English common law system also influenced the legal regimes of Ireland, India, Pakistan, Bangladesh, and Canada, albeit to varying degrees. For example, while the common law system was fully adopted in post-partition India, Pakistan, and Bangladesh, it only partially influenced the distinct legal system in Scotland. In Canada, each province and territory is considered a separate jurisdiction with respect to case law.
Nicaragua's legal system is a blend of English common law and civil law. This came about due to the historical influence of British and American administrations, institutions, and culture. Similarly, Israel's legal principles resemble those of British and American law due to the influence of the British Mandate of Palestine.
Common law systems place a strong emphasis on precedent, with decisions of the highest court generally only overturned by that same court or through legislation. They also value extensive freedom of contract, with few provisions implied into a contract by law. In contrast, civil law systems tend to be more prescriptive, with many provisions implied into contracts by law, and they often have separate constitutional, administrative, and civil court systems.
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Frequently asked questions
Common law was not originally written down. It was a system of law that developed in England following the Norman Conquest in 1066, focusing on case-by-case rulings and precedents.
Common law was used to unify the Anglo-Saxon population under William the Conqueror and his successors. It was a means of centralising government and establishing a cohesive legal system.
Common law relied on judicial precedent, with judges basing their rulings on previous cases. This allowed the law to evolve and adjust to changing social values and understandings.
Common law was heavily influenced by royal writs, which were written orders from the king that initiated lawsuits, often concerning property rights and criminal cases.
Common law focuses on case law and precedent, while civil law systems, like the Napoleonic Code, are based on written legal codes and statutes. Civil law gives less weight to precedent and generally leaves judges with less discretion in deciding cases.
