What is the English Common Law? IntroEnglishcommon law originated in the early medieval era and parts of it are still inuse today in most member states of the British Commonwealth of Nations. Englishcommon law was founded in the King’s Court (known at the time as Curia Regis).The King’s Court is a single royal court which was arranged for most of thecountry at Westminster, in London, England. English common law was primarilyestablished in the period after the Norman Conquest of England in 1066 CE, thissystem replaced the legal system of the Anglo-Saxons. The Anglo-Saxons were operating on a system where local customs governed mostmatters. The Norman Conquest did not bring an immediate end to Anglo-Saxon law,but as the feudal system was implemented, the government centralized, andEnglish common law was enacted. Some of the elements that were retained fromAnglo-Saxon rule were the jury, ordeals (trials by physical test or combat),and the practice of outlawry (putting a person beyond the protection of thelaw). Not unlike most other legal systems of the time, the English common laworiginally did not apply substantive rights, (also known as substantive law),but rather procedural law.
The difference between substantive law andprocedural law is described by the example from Britannica encyclopedia 2″substantive law would describe how two people might enter into a contract, procedural law would explain how someonealleging a breach of contract might seek the courts’ help in enforcing theagreement.” English common law evolved over time from using procedural law tosubstantive law. Trial by OrdealsThetrial by ordeals is a system that has the accused perform extremely dangerousand sometimes even deadly trials to prove their innocence. The purpose of thetrials is to have a higher force, (for European societies in the Middle Ages,God), judge the incriminated, this is a concept known as iudicium Dei, which translates from Latinto “the judgment of God”. It was believed that during the trial, God wouldintervene and protect an innocent person. Even though this method is commonlyassociated with medieval Europe and Christianity, the use of it can be found inother areas of the world, such as India, Southeast Asia, and many parts ofAfrica. Both the Ramayana (a Hindu epic), and the Old Testament (texts believedto be the sacred word of God) have been found to describe trials by ordeal.
Trials by ordeal are still used today in Liberia under a different name “sassywood” butare being discouraged. One of the most known trials is the “trial by water”,which is infamous for being used on witches in the 17th century. A personaccused of being a witch would be dragged to the nearest body of water,stripped to their underwear, bound and thrown into the water. The “logic” behindthis was that witches rejected the sacrament of Baptism, so the water wouldreject their body, causing them to float. If a woman sank, then her innocencewas proven; the accused usually had a rope tied around their waist so that theycould be pulled up, but accidental deaths by drowning did happen.
At the FourthCouncil of the Lateran in 1215 C.E, use of the trials by ordeals was prohibitedby Pope Innocent III; their use dissolved in the 14th and 15thcenturies, but some of them did make a return in the 16th and 17thfor witch hunts and trial by combat wasonly officially repealed in 1819 CE. Sir William Blackstone, oil painting attributed to Sir JoshuaReynolds Jeremy Bentham, oil painting by H.W. Pickersgill Modernization of the English common law Themodernization of English common law happened from the late 18th centuryto the early 21st century. One of the most influential people in the process of modernizing English commonlaw was Sir William Blackstone. His most influential work was the “CommentariesonThe Laws ofEngland” which consisted of four books: “Ofthe Rights of Persons” dealt with family and public law; “Ofthe Rights of Things” gave an outline of real-property law; “OfPrivate Wrongs” covered civil liability, courts, and procedure;and “Of Public Wrongs” wasa study of criminal law.
Blackstone was not the most popular among the legalcommunity and was belittled for his superficiality. Lawyers and laymen alike cameto view it as an authoritative critique of the law. In the following century,the fame of Blackstone was even greater in the United States than in his home country; after the AmericanDeclaration of Independence (1776), the Commentaries became the primarysource of knowledge of English law in the newworld (North and South America). Post the social turmoil of the French Revolution and the economic metamorphosisthat was the Industrial Revolution, there was high demand to modernize the law.One of the most iconic figures in thisreformation was the English utilitarian philosopher Jeremy Bentham, who was preparedto make radical changes to the legal system.
He was a student of WilliamBlackstone and disliked the law that he had heard described in Blackstone’slectures. In 1769 he entered the bar3. But because Bentham wasliving off an inheritance, he never actively practiced law and was slowpublishing works. He chiefly focused on making the law less technical and more accessible to the people.
His basic work, “An Introduction to thePrinciples of Morals and Legislation” did not crop up until 1789. Benthamlargely attacked legal fictions and otherhistorical anomalies. He campaigned for two vital modifications in the legalsystem: one, to bring about the greatest happiness for the greatest number,instead of the courts making the law, legislators should; and two, the purposeof law should differ with time and place. His book spread rapidly. Benthammoved to France in 1792 where he was madea French citizen. His input was respectfully received in most European andAmerican countries, however, what Bentham wanted most in life was for his ideasto be drawn up into a legal code for Europe. Bentham’s ideology went on toinfluence the evolution of civil law being practiced in much of Europe.
There were many more changes after Bentham,all leading into what we would call law today. Modern LawCivil Law versus Common Law There are two main categories of modernlegal systems, civil law, and common law. There are approximately 150 countriesusing civil law, such as China, and most of Europe, and only about 80 usingcommon law (Most of the British Commonwealth of Nations). Most countries,especially the USA, use a combination of the systems. The primary differencebetween the two systems is that common law uses past judgments, not everysituation is documented as a law. Whereas in a civil law system there is a writtenconstitution based on specific codes (example, tax law, civil code, and codescovering corporate law) preserving basic rights and duties. The roles of a judge and lawyer differ ineach system, in countries using civil law, judges could be described as”investigators”. They ordinarily take lead in the proceedings by bringingcharges, establishing facts though examination of witnesses, and applytechniques found in legal codes.
In a civil law system, the lawyers representthe client in civil proceedings, this includes advising clients on points of law and preparing legal pleadings for filingwith the court. The importance of vocalarguments, presentations in-court, and active lawyering in court are reduced incivil law when compared to common law. In countries using common law, lawyersmake presentations to the judge andattempt to persuade others on facts and points of law. The matters are then”refereed” by the judge5. The judge has more flexibility in a common law system to produce anappropriate procedure for the conclusion of a case.
Conclusion Medieval English common law did affect modern law in many ways. English common law, ismodern law, in countries formerly belonging to the British Commonwealth ofNations. However, modern English common law is such an evolved form of medievalEnglish common law, that a professor of law in the 11th century6would barely be able to recognize it. The evolution of English common law hasbeen beneficial. Without the timebetween the construction of the English common law and now, we would still beusing crude methods of justice such as the trial by ordeal. The evolution ofEnglish common law has not been quick or easy. It still has a long way to go,because even today hundreds of people are falsely imprisoned7, andthat’s only the ones that we know of. 1 Based on thejudicial branch of the United States of America.
2 Under the caption”Procedural law” from https://www.britannica.com/topic/common-law 3 A legal term for being admitted to practice law 4 A law that has been organized by subject matter.
5And sometimes the jury. 6 Providing that they werewell educated which would be very rare for the time. 7 according to “TheNational Registry of Exonerations” from http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2015.
pdf +Bibliography “AHistory of Trial by Ordeal” by ArallynPrimm. Created April 19, 2013, http://mentalfloss.com/article/50161/history-trial-ordeal/ “Common Law” by Andrew D.E. Lewis, Albert Roland Kiralfy, and Mary Ann GlendonCreated October 26, 2017.
https://www.britannica.com/topic/common-law “Procedural law” by Stephen C.
Yeazell Geoffrey HazardHans-Heinrich Jescheck Thomas Weigend Created: January 20, 2017https://www.britannica.com/topic/procedural-law “Trial by Ordeal: Alife or DeathMethod of Judgement” by ??WTY Created: October 2015http://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160 Last Modified: October 31, 2009https://www.voanews.com/a/a-13-2006-10-27-voa19/398774.html