ORIGINS OF COMMON LAW  (1)


Keywords: Law of England, Code of Hammurabi, customs, stare decisis, William Blackstone, Henry de Bracton, Jeremy Bentham

Common law is a vast area of law spanning centuries, continents, and far too many philosophers to include them all in this size of an article. Searching for a one basic and lucid idea of exactly what common law means is not a light task and an undertaker of such a search may come away still wanting. A complete definition can only be understood through defining other terms, explaining the key principles, and reviewing case law. A solid starting point for an understanding of a definition is to think of common law in terms of law that comes from the common people, rather than deriving from the legislation, which comes from the experts (Landry, 1997, p.1).

Legal systems based on the laws of England are typically described as belonging to the common law tradition (Glaeser, 2001, p. 3). Common law differs from statutory law not only in its foundation, but more importantly in its views. It is law seen from the perspective of a judge faced with a controversy, or a jury seeking to arrive at a verdict, not from the point of view of sovereign monarch faced with civil war. In court, statutes are law when statutes are there, but new cases come up which statutes are law when statutes are there, but new cases come up which statutes do not cover, and, of course, what statutes themselves mean for a case requires interpretation. Common law is unwritten law (Stoner, 1992, p. 7).

Though it has suffered at the hands of legislators, common law is still followed in all major English speaking countries around the world (Landry, 1997, p. 3). It was not until the thirteenth century that a law common to all of England was established by the royal courts of justice at Westminster. In its early days, the King’s Courts only heard cases of exceptional importance of those that posed a threat to the kingdom. By the thirteenth century, certain parts of those courts functioned as independent organs. Sensitive to the feudal barons who sought control of their own affairs, the royal courts at first limited their jurisdiction to three types of cases: royal finances, matters affecting the ownership of land, and serious criminal matters affecting the security of the kingdom. But by the end of the Middle Ages the Royal Courts had become the only courts of justice (David, 1978, p. 55). Judges of the Royal Courts applied a uniform law that is, a law that was common throughout the kingdom. That practice of utilizing previous rulings as the basis for deciding future cases, evolved into what is now recognized as the Common Law System (Thurbin, 1998, p. 40-41).