Common law

Lore & Background

Initially, the common law referred to the laws common to all the king's courts across England, distinct from local folk courts, urban borough courts, and manorial courts. During the 12th century, Henry II established a system of travelling judges who enforced a set of laws common to all England. Over centuries, the precedent of these judges' decisions evolved into a sophisticated system of common law, which became the main form of lawmaking in England for hundreds of years.

Compared to the civil law tradition of continental Europe, the common law tradition has markedly less influence from Roman law and less tendency to be codified, leaving common law judges broader discretion in statutory interpretation and a quasi-legislative function in adjudication. Nonetheless, early common law judges and scholars, including Glanvill and Bracton, were well accustomed with Roman law, and Bracton's treatise was heavily influenced by canon law and Justinian's Institutes. Roman law ideas regained importance in common-law legal scholarship with the revival of academic law schools in the 19th century. Separately, during the late medieval period, a distinct set of equitable laws began to be administered by the Court of Chancery.

In the 17th century, it was established that where the rules of equity and common law conflicted, equity would prevail. In the late 19th century, the separate judicial systems of common law and equitable courts in England were fused, although the rules of equity were retained. Some jurisdictions, particularly in the United States, retain separate legal and equitable court systems.

Reader's Guide

The common law is significant as the foundation of legal systems in approximately one-third of the world's population, including major nations such as the United States, India, Canada, and Australia. Its defining feature is judge-made law based on precedent, which gives judges broad discretion in statutory interpretation and a quasi-legislative role. This contrasts with the civil law tradition of continental Europe, which relies more on codified statutes and Roman law. The common law's historical development from the King's courts of medieval England, particularly under Henry II's travelling judges, established a unified legal framework that replaced local customs.

Over time, the common law system influenced and was influenced by Roman law, canon law, and equity. Today, common law countries increasingly adopt codes in areas such as bankruptcy, intellectual property, and tax law, exemplified by the Uniform Commercial Code in the United States. The legacy of the common law includes ongoing debates about judicial lawmaking, with early theorists viewing it as discovering ancient customs, while modern scholars adopt a positivistic or realist view. Mixed jurisdictions, such as South Africa and Scotland, incorporate both common law and civil law elements.