More about Common Law (London University)

More about Common Law (London University)

Common Law is the law made by judges sitting in court and deciding on Individual cases, be they civil or criminal disputes. It’s the law of the land created by the judiciary. Therefore, the Common Law is sometimes referred to as Case Law.

It develops by judges following the decisions of other judges who have decided similar cases previously. This is called the doctrine of Precedent whereby a judge will apply the same legal principles and reasoning as a previous judge in a similar case.

All these previous decisions are documented in Yearbooks and Reports.

William Blackstone gave a good definition of Common Law: “it is to be found in the previous decisions of judges, in treatises, in law reports …” He was the first scholar to attempt to bring together all the Common Law of England in the eighteenth century through a series of lectures in Oxford, later published as Commentaries on the Laws of England (1765-69). He tried to systematize all the Common Law decisions made by judges over many years. It is the most comprehensive summary of Common Law ever compiled by a British author. Even Abraham Lincoln referred to it as a student lawyer.

Blackstone is responsible for many phrases that have become part of common usage. For example: it is better that ten guilty persons escape than one innocent person should suffer.

How did the Common Law develop?

William the Conqueror was the first king who tried to establish a unified system of Law across England.

William invaded England and Wales from France in 1066 (Battle of Hastings). Prior to the invasion by the Normans, there were various systems of law across England, depending on who the invaders had been in the various shires. For example, there was Dane Law in the North (from invaders from Denmark). But there was no unitary system. English law involved a massive system of rules that varied from region to region. Each county or “shire” had its own local court and dispensed their own justice in accordance with local customs.

Sometimes the law was enforced in an arbitrary fashion. Trial by Ordeal meant that sometimes the accused had to prove his own innocence by being physically tested (for example put under water or burnt) and if he escaped or healed, he was deemed innocent, as God had interfered in his favor, through a miracle. This brutal type of trial was condemned by the church in the nineteenth century.

William the Conqueror wanted to establish his power and order so he laid the foundations of the legal system. He needed a central system of justice and laws that would be obeyed by everyone.

He therefore created the Curia Regis composed of the King and his most trusted advisors and people would bring their disputes to this court. England was not heavily populated at the time and it was difficult to move around the country, so the King travelled around with his Curia Regis and as he travelled people brought their grievances to the Curia Regis. The king would literally sit on a Bench and the court of the King’s Bench became the most important court. It was the beginning of the common law system.

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