Introduction to the Common Law

1. Introduction

Civil law tradition

Civil law system originated with the Twelve Tables in Rome in 450 BC. It had five sub-traditions including Roman law, canon law (from 4^th century CE), commercial law (around 11^th century CE), intellectual revolution in Western Europe around 17^th century CE and “legal science” movement (especially in Germany) in 19^th century CE. Civil Law system shaped many legal systems around the world due to colonization by European states from 16th century CE.

Some of influences of Civil law are similar to those of the Common Law such as Canon law, commercial law, and intellectual revolution.

Common Law tradition

Common Law system originated in England during medieval period around the 11^th century. There local customary rules were displaced due to administrative strength of King William I and those Kings following. There were fewer external influences and therefore fewer sub-traditions than civil law. Developments were generally more a result of internal political developments and conflicts between monarchy and legislative authorities. Global influence of the Common Law system came from England’s outmanoeuvring of continental European states in colonisation during the 1600-1800 CE.

2. Historical development of the Common Law

2.1 Before the Common Law

 Law and custom in early Britain

The Romans conquered England during the first century BCE and the first century CE. Roman law was enforced in Britain, at least among Roman citizens. It is debatable whether the Roman colonisation of Britain had any lasting impact at all on native traditions. After the Romans left Britain at the beginning of the 5th century CE, the local tribes were left to pursue their own customs and traditions.

Over the next few centuries, Britain was subject to constant invasion, in particular by the Angles and the Saxons, who generally pushed the Celts (earlier inhabitants of Britain) to the west and north – to Wales and Scotland.

The Anglo-Saxons were the first to introduce written laws. They had also brought Christianity with them and many of the laws were written by priests and concerned church matters. In the 9th century, there were Danish invasions bringing Scandinavian influences to the east of the country. The struggle between the Anglo-Saxons and the Danes enabled King Alfred to begin unification of the country. He began a process of making laws, which was continued by his successors. However, England was governed more by unwritten custom than by a uniform, settled, and written law.

Procedure and Proof

The ‘moot’ or folk-assembly is mentioned in the first written laws, and it seems to have pre-historic origin. It would be unrealistic to regard it as a court of law. It was an open-air meeting to discuss local affairs among local people. The principal men of the area gathered but acted as a community. There were no lawyers and no written records. It could be considered as the communal dispute resolution

If there was a contentious matter, the parties could resort to “proof by oath” which might have to be backed up by a physical test. The plaintiff was required to make a prima facie case, in which he would be supported by his followers (similar to witnesses). Then, the defendant would give “proof by oath” by swearing on the holy evangels the truth of his case. The strength of the oath depended on the social status of that person. Where an oath was not of sufficient strength to release the defendant, he might need to gather oaths from other people to help them (oath helpers).

If proof by oath was insufficient the defendant might have to prove his oath by ordeal. It was a physical test, either by fire or water. For trial by fire, the defendant might be required to hold a hot piece of iron so that it burned his hand. If, later, it appeared that the burn was healing properly, his oath would be proved and he would prevail; if the burn became infected, judgment would be made against him. For trial by water, the defendant was cast, bound hand and foot, into a river or pond in which sinking or floating is taken as evidence respectively of innocence or guilt. The ordeals were an appeal to God or the local spirits to reveal the truth in human disputes. If God had shown that he was pleased with the defendant, he would not be punished.

Eventually the responsibility for administering justice moved from the community to the individual, as local lords gained power over their areas. Other kinds of dispute-resolution forums developed such as local feudal courts, Church courts, merchant courts, etc. All different ‘courts’ were operating at the same time. The disputes also became the concern of the king. There was no court with general jurisdiction or uniform body of law that applied throughout the country.

2.2 The Arrival of the Common Law

Origins of the Common Law

After William I conquered the whole England (starting in 1066 CE), one of his first actions was to promise the English that they could keep their old laws. The conquerors found in England a system of law and government at least as developed as that which they had left in Normandy, France. The immediate changes seemed to divide more than consolidate. He made new racial discriminations between French and English. He brought a new ordeal of “trial by battle” from Normandy, which could be used only for the issue of land ownership.

The Common Law emerged in the 12^th century from the efficient and rapid expansion of institutions which had existed (though undeveloped) before 1066. England was already unified and had the beginnings of a bureaucracy operating through written instruments, even before Willian I came. The Normans brought strong central government and very effective administration to develop this. A notable part of this was the King’s personal justice that co-existed with other modes of dispute resolution.

Royal Justice

Royal justice, which was justice from the ‘curia’ or king’s court, gradually grew in importance. The king appointed people to hear and deal with the disputes for him. This was particularly the case when the king began to send judges from the curia around the country. These were wandering justices who would rotate through different areas of the country and rule on disputes. If people could not wait for the wandering justices to come to their area, they could take their dispute directly to the king and his curia. The king himself would constantly move around the country, and his court would go with him. There was no parliament at the time. Many rules were developed by the judges themselves. Gradually, the royal justice replaced the local dispute-resolution forums because the royal justice had better enforcement and the local methods became less popular: for example, the ordeals fell out of use when the Church forbade priests from administering them.

2.3 The nature of the Common Law

Procedure

Between the 13^th century and the reforms of the 19^th century, procedural formalities dominated Common Law thinking. As far as the courts were concerned, rights were only significant, and remedies only available, to the extent that procedures were available. With the arrival of royal justice, a plaintiff had to purchase a royal writ (which acted like a ticket) from the king’s Chancery to authorise the commencement of proceedings.

The writ acted as ticket to access court system. There were different types of writs depending on the dispute. It is the royal command to take action, it is just to do so. An example of the writ of debt is as follows.

“The King to the sheriff of Nottingham, greetings. Command [A] that justly and without delay he render to [B] [one hundred shillings] which he owes to him and unjustly withholds, as he says. And if he will not do so, and if the aforesaid [B] shall give you security for pursuing his claim, then summon the aforesaid [A] by good summoners that he be before our justices at Westminster [on date] to show why he has not done it.”

The next step is the pleading. There is an argument in front of the King’s judges whether plaintiff was entitled to the writ, based on the facts. If defendant denies facts, it proceeds to the next phase, trial.

For the trial, jury in local area decide facts and give verdict. They originally acted like witnesses. Then, they developed into an independent group to whom judges explain the law, and who gave the final verdict in a case.

The way the writs were written became fixed. Once a writ had been issued, the officials in the Chancery used the same words in the future. They were reluctant to change the wording to fit a particular case. A plaintiff had to find a known formula to fit his case or apply for a new one to be invented. This was quickly prohibited. If the problems did not fit with the existing writs, the royal court would not help them.

Common Law structure

The Common Law structure has a very different structure to civil law. There is no attempt to create any universal or comprehensive approach. It has a completely different basis. There is no clear division between public law and private law, for example. Instead, the historical basis of liability in English law is ultimately based on the writs and the ‘causes of action’ (the procedure, which was used, linked to the writs).

The writs were not based on substantive legal categories or any kind of more general legal plan. Essentially the plan was simply to create a remedy for a small number of very common wrongs which upset society. Substantive legal concepts remain somewhat connected to these procedural differences. For instance, “tort” in Common Law is not a single unified legal concept, but rather a category into which several specific legal actions were grouped.

Due to its gradual historical development, Common Law legal categories are less systematic than civil law categories. The origins of many legal concepts in Common Law are procedural – connected to the writ system. However, since the abolition of formal causes of action, the Common Law has developed more general principles in some areas, like contract, though in others, like tort, there is still heavy influence from the historic forms of action.

2.4 Equity

Failure of Common Law to do justice meant petitions were increasingly made to the King personally. The King eventually started passing these on to the Lord Chancellor who was the King’s most trusted advisor. By the end of the 13th Century, the Lord Chancellor was sitting in a separate court: the Court of Chancery.

Rise of Equity

Equitable jurisdiction expanded after the 13^th Century. There was an increasing emphasis on procedure by Common Law courts. Chancellors were no longer close spiritual advisers to the sovereign but were lawyers.

The Courts of the Chancery, also known as the courts of Equity, used a different procedure from Common Law courts which was inspired by Canon law procedure and incorporated elements derived from Roman law. It was closed written procedure without a jury (less public).

Nature of Equity

Equity steps in where the Common Law functions poorly. In other words, it applies when the Common Law was unable to hear a dispute or to provide an adequate remedy. Therefore, equity was designed to supplement the Common Law.

Equity acts in personam, which means the court had jurisdiction against the person. In other words, judges could order a person to do or not do something. A person who disobeyed the order could be imprisoned. The remedies are discretionary in character: the court only makes orders if it is just to do so (‘just’ here means that it complies with equitable principles, or “maxims”). Examples of the maxims are ‘equality is equity’, ‘equity looks to the substance not the form’ and ‘he who comes to equity must come with clean hands.’

Equity quickly formed a full system of legal rules with its own procedures and substantive principles separate to common law. It was a complete set of rules with the specific concepts. It also provides different remedies from common law, including injunction, specific performance, rescission, and rectification.

Conflict between Common Law and equity

Equity was originally designed to fill the gap in the Common Law. King James I decided (in 1615, the Earl of Oxford’s Case) that in cases of conflict, equity should prevail over Common Law.

Since the late 19th century, there was a change in English law in England. The two separate court systems were fused. Now all the courts in England apply the rules of equity or Common Law, depending on which rules apply to the case. Whether the rule was originally from common law or equity has an impact on what you must prove to win your case, and what remedies will be available if you do.

Summary

Common Law developed from the medieval English courts. Its conceptual structure traces back to the different procedures that were available. Authority is from judges who developed the system and the legal principles required to bring a successful action.

Equity is a separate system developed to deal with procedural focus of Common Law. It mainly focuses on principles of morality but developed its own rules. Now, there is the fused court system. The courts use both types of rules.

Statutory law (Acts of Parliament) has greater authority than the Common Law or equity. However, it traditionally used to make small changes or fill gaps in the Common Law. Acts of Parliament in English legal system tend to be specific. The Common Law also influences drafting of Acts of Parliament.

3. Influence of Roman law?

Roman law had some influence on Anglo-Saxon law, especially with the arrival of Christianity. Roman law’s influence on early Common Law came through academics such as Glanville, and Bracton and some key figures of administration such as Lanfranc (the law teacher and key adviser of William I). Canon law is indirectly influenced by Roman law. In the early days, the Chancellors were trained in Canon law and Roman law. Thus, Equity is influenced by Canon law and Roman law. As the Common Law was developed, it is possible that ideas of Roman law could have been borrowed.

Overall, the influence of Roman law is mostly academic influence and a source of inspiration for new legal problems (especially the principles of equity). Courts would not apply Roman law, but they had to follow procedural requirements of Common Law. There was no moment for reception and restatement of law in English history.

Therefore, there is influence of Roman law in the Common Law. However, it is the indirect influence for the Common Law system. It could come through academics, equity, canon law, law of merchants etc.