Ch. 2.1. The Origins of Common Law

The Emergence of Formal Government: The twelfth century saw a shift across northwestern Europe from the predominantly local, informal power arrangements typical of customary law to formal government organized along bureaucratic lines. In England the key reign was that of Henry II (1154-89), when the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King’s Bench and of Common Pleas) became established in Westminster, a suburb of London. Previously the king’s court had been itinerant, i.e., it met wherever the king happened to be. Royal justice expanded to cover the whole country and all classes from freemen (see below) up to the highest-ranking nobles. Serfs, however, were still excluded. But royal justice gradually undermined the independence of local lords, whose men, both noble vassals and serfs, increasingly escaped lordly control as they sought the right to take their cases directly to the royal courts.

Freemen: In-between lords and serfs were freemen. Freemen held some of their lands ‘freely’ and leased other lands from landlords, but in return for rent payments rather than any kind of personal service. Probably not very numerous before ca. 1200 CE, freemen thereafter expanded as a social category, absorbing all of the former serfs by the end of the Middle Ages (ca. 1500 CE). As feudalism and manorialism declined over the later Middle Ages, the class of freemen and freely-held property both gradually became the new normal. These two aspects of ‘freedom,’ personal and tenurial, developed in tandem with the rise of the state, because both required a central authority capable of guaranteeing ordinary people’s rights, as Magna Carta suggests was already beginning to be the case by 1215.

The Birth of Common Law. The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be called the ‘Common Law,’ which at first meant simply the law that was the same, or ‘common,’ throughout the country, as opposed to the diversity of regional or local law. This emerging national law did not set out to change legal norms, so it only gradually affected the customary approaches to such “substantive” areas of law as crime, family, property, and inheritance. The Common Law was very innovative, however, in terms of procedure: it emphasized written documentation (focused above all on royal ‘writs,’ on which see below), the peaceful resolution of disputes, the use of local juries to establish both law and fact, and a clear hierarchy of courts.

Common Law as Customary or Case Law. The key feature of both English and American versions of Common Law is their heavy reliance on judicial precedent, or case law, as a means of determining what the law is. Because judicial decisions tend both to recognize tradition and to adjust incrementally to evolving social values and popular understandings, Common Law may be understood as a sophisticated type of customary law, notwithstanding its use of written documentation.

Common Law vs Civil Law, etc. As the foundation of the legal traditions of English-speaking countries, Common Law is often contrasted with the Civil Law traditions of continental Europe, which like their Roman law model are based on theoretically comprehensive ‘legal codes,’ and which (again in theory) leave judges with less discretion in deciding cases. Within Anglophone countries, Common Law in the sense of customary or case law may be contrasted with both statutory law, the law set out by legislative statutes, and, more recently, with regulatory law (the regulations made by executive branch agencies). Historically, this ‘judge-made law’ (sometimes described pejoratively as ‘legislating from the bench’) preceded statutory law in the modern sense by about a century, because England’s first distinct legislative institution emerged only with the establishment of Parliament under Edward I (1272-1307).

Criminal Law: The Grand Jury: Henry II’s most important innovation may have been the establishment of the Grand Jury, which created a system for prosecuting crime based on the cooperation of local communities with royal judges (or ‘justices’) and the central royal courts. Essentially, the royal justices or the sheriff simply asked a local jury of twelve “law-worthy men” of each county or township:

whether in their hundred or in their township there is any man who…is publicly reputed as being a robber or murderer or thief; or anyone who harbors robbers or murderers or thieves.

Then the accused had to answer these accusations.

Property Law: Writs and Juries: The reforms that directly concerned property law (known as the possessory assizes) were based on the use of royal writs, brief written orders from the king—though actually written by his officials—to initiate lawsuits. Any freeman could purchase a writ to start a lawsuit against another party, and most cases were decided based on the testimony of local juries. By this means the royal courts could handle different kinds of legal business for a wide range of litigants. The two key writs below are often credited with undermining lordly power and helping to create something more like modern property rights.

The Writ of Mort d’Ancestor: This writ (or court order) began a legal action concerning inheritance upon the death of one’s predecessor. If any ‘freeholder’ felt that his (or sometimes her) inheritance had been wrongfully denied by his lord or by anyone else, then by paying a fee for this writ, he could initiate a suit to recover it:

if the lord of the land denies the heirs of the deceased the possession they claim, the king’s justices should call an inquisition to be made by twelve lawful men as to what possession the deceased held on the day of his death. And according to the result of the inquest let restitution be made to his heirs.

The Writ of Novel Disseisin: This writ, or court order, began a legal action to reverse a recent dispossession. It helped the king extend his jurisdiction over virtually all property disputes—except those among serfs, who would remain subject to their manorial lords for another century or two. Along with the Grand Jury, this writ also helped to outlaw virtually all non-royal acts of violence. It thus gave the royal government what Max Weber considered an essential attribute of any effective state: a monopoly over (legitimate) violence. This writ is first described in the first textbook of the new Common Law, known as Glanvill, which was written in about 1189:

The king to the sheriff, greeting. —[name of plaintiff]— has complained to me that ——[name of accused]—unjustly and without a judgment has dispossessed him of his free tenement [landed estate] in —-[name of place]—–. Therefore I command you that, if the plaintiff gives you security for prosecuting his claim, you are to see that the chattels [moveable property] which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until —[date]—. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and that their names are endorsed on this writ. And summon them to appear before my justices on —[date]—, ready to make their recognition [testimony], together with the accused or his bailiff [representative] if he himself cannot be found.