Historically The Common Law Developed From

From Royal Writs to Global Influence: Tracing the Historical Development of Common Law

Imagine a legal system not etched in stone by legislative decree, but one that evolves organically, shaped by the cumulative wisdom of judges grappling with real-life disputes. This is the essence of common law, a system that has profoundly influenced legal traditions across the globe. But where did this unique approach to law originate? Understanding the historical development of common law requires us to journey back to medieval England, exploring the socio-political landscape that fostered its growth and the key figures who shaped its distinctive character.

The story of common law is not one of sudden creation, but rather a gradual accretion of judicial decisions, customs, and practices. It's a tapestry woven with threads of royal power, local customs, and the enduring quest for justice. To truly appreciate its significance, we must delve into the specific historical circumstances that gave rise to this influential legal tradition.

The Seeds of Common Law: Norman Conquest and Royal Centralization

The year 1066 marks a pivotal moment in English history and, consequently, the history of common law. The Norman Conquest, led by William the Conqueror, brought about significant changes in the political and legal landscape of England. Prior to the Conquest, England was governed by a patchwork of local customs and laws, varying significantly from region to region. These were often unwritten and based on tradition, making them difficult to enforce consistently.

William recognized the need for a more centralized and unified legal system to consolidate his power and ensure effective governance. He did not, however, simply abolish the existing Anglo-Saxon laws. Instead, he sought to integrate Norman legal principles with existing customs, gradually establishing a system that would be applicable throughout the realm. This process was driven by several key factors:

• Royal Authority: William asserted the king's authority as the ultimate source of law, laying the foundation for a centralized legal system.
• Royal Courts: He established royal courts, initially focused on matters of royal interest, such as taxation and land disputes. These courts gradually expanded their jurisdiction to encompass a wider range of cases.
• Traveling Judges: To administer justice across the country, William appointed judges who traveled on circuits, hearing cases in different localities. These judges played a crucial role in unifying legal practices.

The system that emerged was not a completely new creation, but rather a synthesis of Norman and Anglo-Saxon legal traditions, adapted and refined by royal officials. This marked the beginning of a shift away from purely local customs towards a more uniform legal system.

The Rise of Writs and the Court of Common Pleas

A critical element in the development of common law was the use of writs. Writs were essentially written orders issued by the king, directing a specific action or commanding a person to appear in court. They were the key that unlocked access to the royal courts. If you wanted to bring a case before the king's judges, you needed the appropriate writ.

Initially, writs were ad hoc, issued on a case-by-case basis. However, over time, certain types of writs became standardized, each covering a specific type of legal claim. This standardization led to the creation of a register of writs, a collection of commonly used forms. The register became a vital tool for lawyers and court officials, providing a framework for bringing different types of actions.

The availability of a writ, however, was not always guaranteed. If your particular grievance did not fall neatly within the existing register of writs, you were out of luck. This rigidity led to dissatisfaction and eventually to reforms. The Provisions of Oxford in 1258 attempted to limit the king's power to create new writs, but this restriction proved unsustainable.

The Statute of Westminster II in 1285 addressed this issue by allowing the Chancery to create new writs "in consimili casu" - in similar cases. This meant that new writs could be created if they were analogous to existing ones. This provision, while intended to provide greater flexibility, also led to complex legal arguments about the scope of existing writs and the validity of new ones.

Meanwhile, the Court of Common Pleas, established in the late 12th century, became a central institution for the development of common law. Unlike the King's Bench, which focused on matters of royal interest, the Court of Common Pleas primarily heard disputes between private individuals. It became a hub for legal argument and the refinement of legal principles.

The Development of Stare Decisis: Precedent and Legal Reasoning

One of the defining characteristics of common law is the principle of stare decisis, which translates to "to stand by things decided." This principle holds that courts should follow precedents established in previous cases when deciding similar issues. The gradual adoption of stare decisis was crucial in transforming common law from a collection of ad hoc decisions into a coherent and consistent system.

The development of stare decisis was a gradual process. In the early stages of common law, judges were primarily concerned with resolving individual disputes. However, as records of court decisions became more readily available, lawyers and judges began to refer to previous cases as persuasive authority. Over time, the practice of following precedent became increasingly entrenched, eventually evolving into a binding rule.

The doctrine of precedent does not mean that courts are rigidly bound by every past decision. Courts can distinguish a case from a previous precedent if the facts are sufficiently different. They can also overrule previous decisions if they are deemed to be incorrect or no longer appropriate in light of changing social conditions. This flexibility allows common law to adapt to new circumstances while maintaining a degree of stability and predictability.

The emphasis on precedent in common law fostered a distinctive style of legal reasoning. Lawyers and judges developed sophisticated techniques for analyzing past cases, identifying relevant precedents, and applying them to the facts of the case at hand. This focus on case-by-case analysis and the application of general principles to specific facts is a hallmark of common law reasoning.

The Role of Lawyers and the Inns of Court

The development of common law was not solely the work of judges. Lawyers played a crucial role in shaping its evolution. As the legal system became more complex, the demand for skilled legal professionals grew. This led to the emergence of a distinct legal profession, centered around the Inns of Court in London.

The Inns of Court - Lincoln's Inn, Inner Temple, Middle Temple, and Gray's Inn - were (and still are) professional associations that provided legal education and training. They were not universities in the modern sense, but rather residential colleges where students learned law through a combination of lectures, moot courts, and apprenticeship.

The Inns of Court played a vital role in standardizing legal education and promoting a shared understanding of legal principles. They also fostered a strong sense of professional identity among lawyers, contributing to the development of a distinct legal culture. The lawyers trained at the Inns of Court became the advocates and advisors who argued cases before the courts and shaped the development of legal doctrine.

The Influence of Equity: Correcting the Rigidity of Common Law

While common law sought to provide a uniform system of justice, its reliance on rigid forms of action and technical rules sometimes led to unfair or unjust outcomes. To address these shortcomings, a separate system of law, known as equity, developed alongside common law.

Equity originated in the Court of Chancery, presided over by the Lord Chancellor. The Chancellor, acting as the "keeper of the King's conscience," had the power to grant relief in cases where the common law courts could not provide an adequate remedy. Equity focused on fairness and justice, rather than strict adherence to legal rules.

The Court of Chancery developed its own set of rules and principles, often based on natural justice and moral considerations. Equity provided remedies such as injunctions (orders to stop someone from doing something) and specific performance (orders to compel someone to fulfill a contractual obligation), which were not available in the common law courts.

Over time, a tension developed between common law and equity. The common law courts viewed equity as an intrusion on their jurisdiction, while the Court of Chancery saw itself as providing a necessary corrective to the rigidity of common law. This tension was eventually resolved through legislation, which merged the two systems in most jurisdictions. Today, courts typically have the power to apply both common law and equitable principles, ensuring that justice is administered fairly and effectively.

Common Law's Global Reach: From Colonies to Modern Legal Systems

The influence of common law extends far beyond England. As the British Empire expanded, common law was exported to colonies around the world, including North America, Australia, and parts of Africa and Asia. In many of these former colonies, common law remains the dominant legal system.

The spread of common law has had a profound impact on the legal landscape of the world. While each jurisdiction has adapted common law to its own specific circumstances, the underlying principles of precedent, judicial reasoning, and adversarial proceedings remain central to these legal systems.

Even in countries with civil law systems, the influence of common law can be felt. The emphasis on judicial independence, the importance of legal argumentation, and the recognition of rights and freedoms have all been influenced by common law traditions.

Key Figures in the Development of Common Law

Several individuals played critical roles in the development of common law. While it's impossible to list everyone, here are a few key figures:

• Henry II: Often credited as the "father of the common law," Henry II established royal courts and appointed traveling judges, laying the foundation for a unified legal system.
• Glanvill: Richard de Glanvill, a royal justice, is believed to have written the first treatise on English law, Tractatus de legibus et consuetudinibus regni Anglie (Treatise on the Laws and Customs of the Kingdom of England), providing a systematic overview of the common law in the late 12th century.
• Bracton: Henry de Bracton, another royal justice, wrote De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) in the mid-13th century, a more comprehensive and influential treatise on English law.
• Edward Coke: A prominent jurist and Chief Justice in the 17th century, Coke championed the supremacy of the common law and defended it against royal encroachment. His writings had a significant influence on the development of constitutional law in England and the United States.

The Enduring Legacy of Common Law

From its humble beginnings in medieval England, common law has evolved into a sophisticated and influential legal system that shapes the lives of billions of people around the world. Its emphasis on precedent, judicial reasoning, and the protection of individual rights has made it a cornerstone of legal systems in many countries.

Common law is not a static body of rules, but rather a dynamic and evolving system that adapts to changing social conditions and legal challenges. Its ability to learn from experience and to incorporate new ideas has ensured its enduring relevance in a rapidly changing world. The story of common law is a testament to the power of human ingenuity and the enduring quest for justice.

FAQ about the Historical Development of Common Law

Q: What is the main difference between common law and civil law?

A: Common law relies heavily on judicial precedent, while civil law is based on codified statutes and legal codes. In common law systems, judges play a significant role in shaping the law through their decisions. In civil law systems, judges primarily interpret and apply existing codes.

Q: How does stare decisis work in practice?

A: Stare decisis means that courts should follow precedents established in previous cases when deciding similar issues. Lower courts are bound by the decisions of higher courts within the same jurisdiction. Courts can distinguish a case from a previous precedent if the facts are sufficiently different, or they can overrule a previous decision if it is deemed to be incorrect.

Q: What are the Inns of Court?

A: The Inns of Court are professional associations in London that provide legal education and training. They played a vital role in standardizing legal education and promoting a shared understanding of legal principles in the development of common law.

Q: What is equity?

A: Equity is a system of law that developed alongside common law to address its shortcomings. Equity focuses on fairness and justice, rather than strict adherence to legal rules. The Court of Chancery, which administered equity, provided remedies that were not available in the common law courts.

Q: Where is common law used today?

A: Common law is used in many countries around the world, including England, the United States, Canada, Australia, and parts of Africa and Asia. These are primarily countries that were formerly part of the British Empire.

Conclusion

The historical development of common law is a fascinating journey through centuries of legal evolution. From the Norman Conquest to the global spread of British legal traditions, the story of common law is one of adaptation, innovation, and the enduring pursuit of justice. Understanding its origins and development provides valuable insight into the legal systems that shape our world today. The ongoing debates about the role of precedent, the balance between legal certainty and flexibility, and the proper relationship between law and morality all have deep roots in the historical development of this remarkable legal tradition. How do you see common law principles evolving in the face of modern challenges?