IEL 9: The term “Common law”/Der Begriff “Common Law”

The meaning of the term “common law”

This term has at least four different meanings.

1. (in contrast to local law) The law common to the whole of England after 1066, as opposed to local law (which had existed before 1066 and continued to exist to some extent after 1066). This was the original meaning of the term. This common law was the law made in the King’s (or Queen’s) courts. E.g.

The common law was developed gradually over a period of time, beginning in 1066. Eventually it became a rigid system and ceased to develop to any great extent.

The term is only used in connection with legal history.

2. (in contrast to legislation) Law made by the decisions of judges, as opposed to legislation (statutes), which is law made by Parliament. This meaning arose because the law of England was often made by judges. Another expression with a similar meaning is “case law”: much of English law is case law. E.g.

Murder is a common-law offence ( = its definition is contained in an old report of a legal case where the judge defined the offence of murder in the course of giving his opinion). Theft, on the other hand, is a statutory offence (its definition is laid down in a statute, the Theft Act 1978).

3. (in contrast to equity) The law developed by the old common law courts, mainly between the 12th and 14th centuries, as opposed to equity, a separate legal system which grew up later, and was developed first by the Chancellor and later by the Court of Chancery). E.g.

The common law became so rigid that people used to apply to the Chancellor for a remedy. As a result, equity was developed. However, equity eventually became just as rigid as the common law (or: just as rigid as the law).

At law trusts were not recognized, but in equity they were.

Legal remedies, equitable remedies

4. (in contrast to other legal systems) The law of England and Wales and all other legal systems based on it. E.g.

The USA, England and Australia are all common-law countries

Note also the expression “a common-law wife” ( = the woman a man is living with, without being married). This term is used in England without any legal significance, but in some US states and in Scotland there is a form of legally recognized common law marriage (cohabitation with habit and repute).

IEL 4: English law/Englisches Recht

Introduction to English law for translators and/or non-lawyers

This is the fourth in an occasional (very occasional) series of updates of my teaching material.

All entries have the tag IEL (introduction to English law – for translators).

This is intended to be a ‘bare bones’ introduction, and there is a conflict between simplicity and accuracy.

The topic is the meaning of English law. I am avoiding the term common law, which has even more meanings and is the topic for the next entry.

1. First of all, when did it start?

The easiest answer is: some time after 1066, when William the Conqueror laid claim to the whole of England as the successor to the crown. Under his successors, the legal system intended for the whole of England spread out over most of the British Isles (but not Scotland – Scots (or Scottish) law developed separately and is quite different from English law).

(1066 is both too late – there was no clean break from pre-1066 law – and too early – the centralized system of law did not really bite until into the 12th century.)

Before 1066 there were local courts, from which the local barons earned money. They continued after 1066 but gradually became less important. From 1066 on, William I introduced a central system of courts in London, with jurisdiction over the whole country. Through travelling judges, it spread out to the provinces. But the main work of developing the law was done after William I.

2. Today, English law means the law of England and Wales. The UK has one parliament, but three legal systems: for England and Wales; Northern Ireland; and Scotland. The House of Lords is the highest civil (not criminal) court of appeal for England, Scotland and Northern Ireland. Some Acts passed in Westminster apply to Scotland too, some apply in part to Scotland, some apply to Scotland only. On top of that, Scotland has its own parliament now, and some domestic Scottish matters have been devolved to it (education, health, agriculture and justice). Lawyers qualify in one of the three jurisdictions.

English law was exported to colonies and became the basis of the legal system in nearly all of the USA (not Louisiana), Canada (not Quebec), Australia and so on. It is also the basis of law in the Republic of Ireland. The law of most US states is based on the law of England up to the 18th century. US lawyers still study old English cases, and even cases decided after 1776.

English law has been developing for a period of over 1,000 years. It has evolved gradually, especially through the decisions of judges. There has never been codification, although some statutes have codified smaller areas of law (for example, Sale of Goods Act 1893/1979).