Common law

Common law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law, it comprises three major (and other minor) legal systems, those of England and Wales, Scotland, and Northern Ireland. Historically, the common-law system in England (applied to Wales since 1536) has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. Beginning in 1973 the legal systems in the United Kingdom experienced integration into the system of European Union (EU) law, which had direct effects upon the domestic law of its constituent states—the majority of which had domestic systems that were influenced by the civil-law tradition and that cultivated a more purposive technique of legislative interpretation than was customary in the English common law. However, the United Kingdom exited the EU in 2020. The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United Kingdom since the passage by Parliament of the Human Rights Act 1998.

The origin of the common law

The 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. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.

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The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property. The requirement that, in cases of sudden death, the local community should identify the body as English (“presentment of Englishry”)—and, therefore, of little account—or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements of the Anglo-Saxon system that survived were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; see below The development of a centralized judiciary). Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome.

The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the 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, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.