Public law

Sources of Law: origins of the common law

This element explains the historical background to the development of the ‘common law’ in England and Wales.

What is law?

Before considering what the sources of law are in England and Wales, the jurisdiction on which your studies will focus, it is important to consider what "law" means. A working definition of law for the purposes of your introductory studies is:

The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties.

Legal evolution

There are many functions that the law plays. Among others, it maintains the peace and safety in society; it regulates the relationships between individuals and other legal entities; it protects human rights and liberties; and it ensures the smooth running of economic and political activities.

As a body of rules designed to promote the orderly conduct of society, the law must reflect the wishes or tolerance of the broad majority of the population, in order to be credible and thus enforceable. It must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’.

Although development looks to the future, the historical development of the English legal system is not a subject that is relevant only to historians. The law that we have today is a by-product of a long history of legal development.

Stages of legal development

The development of the law of England and Wales can be very broadly divided into the following periods:

Approximate time period

Development

Pre-1066 (Norman Conquest)

Locally based systems and customs of Anglo-Saxon society.

1066-1485

The formation of common law and its imposition over and above local systems and customs.

1485-1870s

Development of equity; two separate legal systems co-exist.

1870s to present

Joint jurisdiction for common law and equity

Massive development in statute law

Growth of governmental and administrative bodies

Influence of European Union law (post-1973)

The monarch as the source of justice

Today's legal system has its origins in the King's (and Queen's) Courts. Following the Norman Conquest, it gradually became possible to dispense a more centralised form of justice, with the King as the central figure.

In the Norman period, the Curia Regis – the King’s Council – played the role of an itinerant court, allowing the monarch to exercise his personal power – 'High Justice’ – in the most important of cases. This prototype central court existed alongside the local courts (in shires and hundreds) that had been a feature of the Anglo-Saxon period.

The King was aided in the administration of justice by a group of semi-professional, skilled clerics who were part of the royal entourage. These clerics eventually took on the function of deciding disputes themselves. They became autonomous from the King and established themselves at Westminster. The establishment of a fixed King's Court was required by the Magna Carta in 1215. The King's Council gradually developed and different 'branches' of the court evolved to deal with different types of dispute.

The three courts

Three courts developed from the King's Council. The first was the Court of Exchequer, dealing with royal finances, followed by the Court of Common Pleas, dealing with the ownership and possession of land. Later, the Court of King's Bench emerged, dealing with serious criminal matters. These courts remained until the Judicature Act 1873.

To make provision for the administration of law outside London, royal justices were dispatched to the provinces with a royal commission to hold 'assizes' (or sittings) of the royal courts. Initially the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters. Assize Courts continued until the enactment of the Courts Act 1971.

An appeal court also emerged in the form of the Court of Exchequer Chamber. It was abolished in 1875, when its jurisdiction was transferred to the new Court of Appeal.

The common law

Over time, the King's Courts became essential to the resolution of disputes between citizens. The law which the King's judges applied was based upon the common customs of the country, hence the term 'common' law.

This process was most notable following the calling of the first assizes by King Henry II (1154-89), to deal with the legacy of a lengthy civil war involving his predecessor, King Stephen. This re-establishment of royal power provided the opportunity to apply the law of the King's Courts countrywide.

The effectiveness of the new system depended upon the growth of the King's Courts and their eventual ascendancy over the local courts. This process did not come about easily. The expansion of the King's Courts was resisted by the local barons, who saw it as a threat to their power, which was often exercised through the local courts. Nevertheless, the growth of the new system continued. It was firmly in place and recognised as supreme over the local courts by the time of the reign of Edward I (1272-1307).

Common law – meaning

It is important to be aware of the different meanings of the term 'common law' and to identify which meaning the term bears in the particular context in which it is used. The term 'common law' may be used:

- In the historical sense, to distinguish the law as applied by the King's judges as opposed to the law as applied by local customary courts

- To distinguish the law as applied by the King's Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery

- To distinguish case law – that is, law as developed by judges through the system of precedent – from statute law

- To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law (as, for instance, in most of mainland Europe).

The writ system

The common law which was developed by the King's Courts was a procedural system. There was no automatic right of access to the King's Courts. To be able to pursue a claim, the claimant had to purchase a writ from the Chancellor before an action could be brought before the courts.

A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court. It contained the foundation of the complaint, with a different form of writ being used for each ground of complaint (or 'forms of action’).

The writ system soon became rigid. The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issued. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try.

The rules of procedure, which required a pre-existing form of action for a case to be heard, therefore had a stultifying effect on the growth of the substantive law.

Different forms of writs

Type of writ

Description / function; and remedy

Writ of right

First form of “real action” – developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes); remedy = recovery of land

“Personal actions” – all writs below; remedy = damages (i.e. money)

Debt

Recovery of fixed sum

Detinue

Recovery of chattel

Covenant

Breach of promise

Account

Accounting for a payment

Trespass

Against persons, goods or land – jury trial

Case

Remedy where no current action – later influential in development of tort law

Procedure over substance?

The writ system exemplifies how the common law became hidebound by complex and restrictive procedures. For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed. Selection of the wrong writ or failure to follow the correct procedure would be fatal to an action. Process, rather than principles, rights and duties, was paramount, therefore.

The reason for this was that the common law developed largely as a means by which a dispute could be resolved. The courts came into existence as part of the development of centralised royal power, with the aim to conclude disputes rather than necessarily to resolve them in a just way. It was not a system that developed from a concept of 'rights' and 'wrongs’.

Another problem with the emerging common law was that, in personal actions, it offered only the remedy of damages. For example, when one breached a covenant (a legally binding promise), the aggrieved party would not be able to compel the breaching party to fulfil the promise.

Such issues combined together to encourage the emergence of the law of equity.