English Roots: The Beginnings of the Common Law

The American legal system is a direct descendant of the English system, primarily because many of the original colonists came from England. The legal system they brought with them had evolved over several centuries. It originated in 1066, when William the Conqueror took the throne of England by force. William, who was from the Normandy region of France, claimed all the land of England for his own and imposed a feudal system. In this system, the king retained ownership of all land but granted the right to use large tracts to lords who swore an oath of homage to him and who agreed to provide him with certain services, such as military service.

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An important consequence of William claiming ownership of all English land was that a single system of laws could be applied to the entire country. Before William's invasion of England, government was highly decentralized. The basic unit of government was the shire (county), and local courts resolved most disputes between the common people. Local laws and procedures varied widely throughout the country. Although the conquered Anglo-Saxon king and his council had the power to control the local courts, they primarily administered justice for the upper class.

When William took the throne, he agreed that he would not alter the existing laws, and, in fact, the law governing relations between the people was not significantly changed during the next century. However, the methods by which the law was administered were changed. William created a royal council, of which he was the head. Its members were lords to whom he had given land and religious leaders who held church lands. Although the local courts still decided disputes between ordinary citizens, the king increasingly exercised his authority over the courts. Lords were authorized to preside over the courts, and disputes could be removed from the local courts. The king now also appointed the shire sheriffs, which gave him greater control over the shires.

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Perhaps the most important development, however, was the creation of the royal courts. After the Conquest, the king's council heard cases involving the upper class, as had its Anglo-Saxon predecessors. Unlike its predecessors, however, the king's council also began to exercise jurisdiction over cases that traditionally had been heard in the local courts. Over time, the royal case load became so large that the king's council could not decide each case. Therefore, to handle the cases, administrative systems were developed that evolved into a variety of royal courts.

To initiate an action in a royal court, the petitioner had to obtain a writ from the chancellor, who was one of the king's chief ministers. The writ set forth the petitioner's allegations and ordered the alleged wrongdoer to either give the requested relief or contest the claim in court. Over time, the types and styles of writs became standardized. If a petitioner's case did not come within one of the existing writs, the chancellor originally could create a new writ for the action. Later, however, that power was substantially curtailed. Thereafter, although a petitioner whose grievance did not fit within an existing writ could petition the king for relief, he would intervene only in exceptional cases.

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The body of law applied in cases before the royal courts was called the common law, and the first three royal courts-Common Pleas, Exchequer, and King's Bench-were called common-law courts. The key feature of the common law system is that the law is created by judicial decisions in actual cases. Although law also is created by legislatures, legislation is rather piecemeal in common law jurisdictions. In contrast, the civil law system, which exists throughout continental Europe, Latin America, and in many other countries, is based on legislatively adopted codes that are designed to be comprehensive statements of the law. When a civil law court decides a case, it looks for the relevant code provision and applies it.

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In developing the law on a case-by-case basis, common-law courts generally use one of two approaches. When considering an issue that has not been decided previously, a judge derives the applicable legal principle from society's customs and norms. People are far more likely to feel that they have been treated fairly and to support a legal system if it comports with their notions of justice. Sensitive to the charge that they were deciding cases based merely on their personal opinions, however, common-law judges described their decision-making as a process of discovering the law, not of making it.

On the other hand, when considering an issue that has been decided in an earlier case, the doctrine of stare decisis ("stand by the decision") requires a judge to apply the law stated in that decision. As early as the thirteenth century, records were kept of judicial decisions and of arguments made on behalf of the parties. During this early period in the common law, the records were sketchy, and previous decisions were treated as simply providing guidance. Over time, however, the doctrine has evolved to require a judge to apply the law stated in an earlier opinion if it was rendered by an equal or superior court in the same jurisdiction. The only exception to stare decisis is when conditions have changed so much that applying the law in the previous decision would cause an unjust result.

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