British Common Law

Introduction

The tradition of common law emerged in England during the Middle Ages. This tradition was applied when Great Britain acquired colonies across the continent and the world. The American legal system is quite clearly based off of English common law. However, although it was used as a base from which our system was built, common law can have many confusing aspects and it differs in many ways from the American system.


How the System Works

Common law typically is uncodified, meaning that there is no comprehensive, written list of rules or laws. The only written decisions it incorporates are legislative decisions, which tend to be scattered and disorganized. The common law system is largely based on precedent, or decisions, particularly judicial, that had been made in the past about similar situations. These previous decisions are documented in collections of court decisions and case law known as yearbooks or reports1. Which precedents are used in the case at hand is ultimately up to the presiding judge. Judges, as a result,

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held immense power in the shaping of law in Great Britain and their colonies. At its core, common law is an adversarial system: focusing on two parties laying out their conflict before a judge2. As is similar to the American legal system, a jury of ordinary people decides on the facts presented. The judge then determines what sentence is appropriate based3on the verdict.


Historical Development

English common law emerged, around 1066, as the king began to centralize powers into new institutions4. New forms of legal action included the writ, or a royal order, which was used as a specific order to right a wrong. This system became highly formalized and bureaucratic over time. The difficulty of the bureaucracy gave way to the court of equity. These courts had the authority to use principles of equity from any source, including Roman law, to achieve a honorable and desirable outcome5.

In the Middle Ages, common law coexisted with other systems of law in England, such as Roman law and local customary law6. Not until the seventeenth century did common law dominate the land.

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Parliament, as a check to the King's power, claimed the right to define common law. This development coincided with the formation of civil law in nearby countries. This side-by-side development motivated England to move toward a system of codification. This movement produced the first systematic, analytic statement on common law, written by William Blackstone7.


Common Law's Influence on the U.S. Legal System

Courts of law and courts of equity functioned as separate bodies until the abolition of the writs system in the mid-nineteenth century.8Even today, in some U.S. states, separate courts of equity can be found. The modern version of writs, subpoenas and warrants, are frequently seen in the American legal system. Perhaps the most widespread legacy of British Common Law in America is the writ of habeas corpus. Developed during the same time period as Magna Carta, the writ of habeaus corpus calls a prisoner to court in order to determine if their detention is lawful9.

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