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The "common law" I: England

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There are many misunderstandings about the character and the origins of the English common law. Its history is really complicated. Recent research tends to confirm time and again that it is better to look at the common law in its context with European legal history than to regard it as an unique phenomenon. However, certain concepts are indeed difficult to compare with other legal systems. There certainly is a large scale continuity in English law, but there are also evident ruptures within the past. Many subjects call for attention: the courts, the role of the state, the significance of legislation, the role of judges and legal experts. The influence of English law will be dealt with elsewhere in due time. The editions of sources mentioned here concern mainly the royal law. Cities are scarcely mentioned at all.

From the Anglo-Saxon period we know in particular the great law books which resemble the continental "national laws". With the coming of the Normans in 1066 a period stared in which institutions from Normandy are planted on English soil, but also changed with this transplantation. The fierce grip of the Norman dukes on their conquests is remarkable. The twelfth century witnessed the coming of the common law. King Henry I began with decisive legislation after some earlier important statutes (e.g. the assizes of Clarendon) and changed the courts, possibly following the example of the Flemish counts. All courts and jurisdiction were to be royal. Every investigation, any case, started with a royal order in writing, the writ. The private law developed itself seemingly of its own accord, but in fact there are strong resemblances to the casuistry of Roman law. Legal doctrine from both Roman and canon law was known for sure. Lawyers such as Bracton and Vacarius were the first to write about this English law. 

The English Church lived like on the continent under canon law. The jurisdiction of the English episcopal officials (judges) is even relatively well documented. At Oxford and Cambridge both Roman and canon law were teached. Most lawyers studied at the Inns of Court. Some of their moots, mock debates, and readings, the lectures of their teachers, have survived. The Year Books inform us about cases at the royal courts. They are famous for the witty remarks of all involved. The Year Books were meant for the class room, not as stenographic records. The language of law was until the 17th century Lawfrench, a mixture of French, Latin and English. The number of royal courts was quite large. The kings legislated through the centuries mostly in the form of statutes, laws on particular subjects. The sessions of the royal court at these occasions stand at the beginning of the English Parliament. From the fifteenth century on, treatises and commentaries on English law began to appear more often. In penal law the English got very early an officer to investigate unnatural causes of death, the coroner.

Origins    Sources    Literature    Common law in context    Links

Sources    a) statutes and laws, b) commentaries and treatises, c) the courts - see for editions first the Selden Society

Statutes and laws

Commentaries and treatises

Readings and moots are important sources for our knowledge of legal education: 

The courts: writs, collections of verdicts, private notes on trials and cases, etc.

See for the Year Books the Selden Society, which has published some 27 volumes for the period 1309-1330; the Ames Foundation has also published a few Year Books. When reading these editions one should benefit immensely from J.H. Baker's Manual of law French (2nd ed., Aldershot 1990).

An invaluable guide to Year Book reports between 1368 and 1535 available in print is the database created by David Seipp.

For the history of the coroner one can consult the following works:

Origins    Sources    Literature    Common law in context    Links


Origins    Sources    Literature    Common law in context    Links

Common law in context

The common law was not completely separated from continental law. The influence of the continental, both Roman and canon law, gets particular attention in the following studies:

Two well-known works on comparative law offer rich insights for common law, too:

On ecclesiastical law in England the following books are essential reading:

One should notice the following editions for the English practice of canon law:

Origins    Sources    Literature    Common law in context    Links


Origins    Sources    Literature    Common law in context    Links

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