The Origins of Common Law: From Normandy to Compilation
Introduction to Common Law
Common law, as a vital component of the legal system in England and Wales, has roots that stretch back over many centuries. This system of law, largely based on precedent over centuries of judicial practices, stands in contrast to statute law, which is composed of laws passed by parliament. The contrasting legal systems of England and Wales and Scotland reflect the diverse legal histories of these regions. Scotland, for instance, has developed its own unique legal tradition.
Early Development of Common Law
Until the 19th century, common law in England was primarily developed by judges rather than the legislature. This legal framework was particularly influential and began to take shape during the era following the Norman Conquest in 1066, a pivotal moment in the development of English law. Judges played a significant role in shaping the law through their decisions and interpretations, which served as precedents for future cases.
The system of common law was further codified and written down by William Blackstone in his monumental work, Commentaries on the Laws of England (1723-1780). Blackstone's work has had a lasting impact, with many of the principles and concepts still cited today. His systematization of common law provided a structured framework that helped to clarify and organize the laws of England.
The Origins of Common Law: Precedent and General Principles
The origins of common law are deeply rooted in local custom, Christian ethics, and judicial experience. The legal principles of common law evolved through a combination of judicial decisions, which were based on earlier cases and the perceived wisdom of the time. Key elements include the application of Old Testament rules, which dictated the basic norms of behavior such as the prohibition of killing, seizing property, or taking a neighbor's wife, albeit with modified formalities now in place due to statute law.
The concept of case law is central to understanding common law. It refers to laws that have been established through judicial decisions over time. Unlike statute law, which is explicitly written and passed by parliament, common law is built upon a series of precedents, much like a growing tree, hence the term "common law 'just grew'." These precedents provide a foundation for future judges to rely on when making decisions on similar cases.
During the feudal period, law was often determined by the authority of the day, but only if it was widely accepted. One of the earliest forms of legal codification was the principle of the ancient rights or 'from time immemorial' dating back to 1189. This principle asserted that certain legal norms had been accepted and recognized by all for an extended period, even from the reign of Henry II. After this period, legal judgments were documented and recorded, providing a foundational basis for future legal decisions.
Modern Developments and Codification of Common Law
As societies and technologies have evolved, so too has the need for new legal precedents to address new crimes and situations. For example, the legality of polygamy was a matter of common law until a test case was established. The legal principle of natural justice has played a significant role in shaping common law, and, while it is influenced by natural rights and ethical principles, it is wise to establish a reliable precedent through a test case for future legal decisions.
Common law continues to be an integral part of the legal system in England and Wales, influenced by a rich and complex history. From the judgments of medieval courts to the codification efforts of William Blackstone, and the evolution of legal principles, common law remains a dynamic and evolving aspect of the legal framework.
Conclusion
The history of common law is a testament to the resilience and adaptability of legal systems. Originating with the decisions of early judges and shaped by the customs and ethics of the time, common law has grown and evolved to meet the changing needs of society. Its origins trace back to the 12th century, and while it has faced numerous challenges and changes, it remains a cornerstone of legal practice in England and Wales.