History of The English-Speaking Countries

History of the English-Speaking Countries
Common law (also known as judicial precedent or judge-made law, or case law) is that body of law derived from judicial decisions of courts and similar
tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common
law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a
similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare
decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and
legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to
win, and on disagreements of law, judges make that decision). The court states an opinion that gives reasons for the decision, and those reasons
agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to
and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch
(the interactions are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so
that similar facts will yield similar results, lies at the heart of all common law systems.
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English
kings in the centuries following the Norman Conquest in 1066. The British Empire spread its legal system to its historical colonies, many of which retain
the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, and to the style of
reasoning inherited from the English legal system.
Origins
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English
kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local
folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held
their own courts, as did the universities of Oxford and Cambridge, and large landholders also held their own manorial and seigniorial courts as needed.
Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of
law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating
arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached
its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil
and criminal court systems.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would
resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often
discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare
decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to
adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to
one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in
each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the
name "common law".
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England)
into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. The murder of the Archbishop gave rise to a wave of
popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for
secular crimes (see also Constitutions of Clarendon).
The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its
judges sat in open court in the Great Hall of the king's Palace of Westminster, permanently except in the vacations between the four terms of the Legal
year.
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create
statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer
applied on top of the older common law foundation.

History of The English-Speaking Countries

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