Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the Anglo-Norman legal system that superseded and replaced
Anglo-Saxon law in England following the
Battle of Hastings in 1066. Throughout the
Late Medieval Period, English law was codified through judge-made laws and precedents that were created in the proceedings of Royal justices in the
Circuit courts dictated by the
Eyres throughout the country (these themselves evolving from the early medieval
Itinerant courts). This body of legal scholarship was first published at the end of the 19th century,
The History of English Law before the Time of Edward I, in which
Pollock and
Maitland expanded the work of
Coke (17th century) and
Blackstone (18th century). Specifically, the law developed in England's
Court of Common Pleas and other common law courts, which became also the law of the colonies settled initially under the Crown of England or, later, of the
United Kingdom, in
United States,
Canada,
Australia,
New Zealand,
South Africa,
Singapore,
Indian subcontinent,
Israel and elsewhere. This law further developed after those courts in England were reorganised by the
Supreme Court of Judicature Acts passed in the 1870s. It developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods, pre-colonial, colonial and post-colonial, as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the
Court of Chancery, the
ecclesiastical courts, and the
Admiralty court. In the
Oxford English Dictionary (1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiastical law, and admiralty law. For usage in the United States the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them".
Early development In 1276, the concept of "
time immemorial" often applied in common law, was defined as being any time before 6 July 1189 (i.e. before
Richard I's accession to the
English throne). Since 1189, English law has been a common law, not a
civil law system. In other words, no comprehensive codification of the law has taken place and
judicial precedents are binding as opposed to persuasive. This may be a legacy of the
Norman Conquest of England in 1066, when a number of legal concepts and institutions from
Norman law were introduced to England. In the early centuries of English common law, the justices and
judges were responsible for adapting the system of
writs to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is the
Law Merchant derived from the
"Pie-Powder" Courts, named from a corruption of the
French pieds-poudrés ("dusty feet") implying
ad hoc marketplace courts. Following
Montesquieu's theory of the "separation of powers", only Parliament has the power to legislate. If a statute is ambiguous, then the courts have exclusive power to decide its true meaning, using the principles of
statutory interpretation. Since the courts have no authority to legislate, the "
legal fiction" is that they "declare" (rather than "create") the common law. The
House of Lords took this "declaratory power" a stage further in
DPP v Shaw, where, in creating the new crime of "conspiracy to corrupt public morals",
Viscount Simonds claimed the court had a "residual power to protect the moral welfare of the state". As Parliament became ever more established and influential, Parliamentary
legislation gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.
Overseas influences at the end of the nineteenth century. "Dominions" refers to all territories belonging to
the Crown.
Reciprocity England exported its common law and statute law to most parts of the
British Empire. Many aspects of that system have survived after Independence from British rule, and the influences are often reciprocal. "English law" prior to the American Revolutionary Wars (American War of Independence) is still an influence on
American law, and provides the basis for many American legal traditions and principles. After independence, English common law still exerted influence over American common law – for example,
Byrne v Boadle (1863), which first applied the
res ipsa loquitur doctrine. Jurisdictions that have kept to the common law may incorporate modern legal developments from England, and English decisions are usually persuasive in such jurisdictions. In the United States, each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law. The US Supreme Court has the final say over federal matters. By contrast, in Australia, one national common law exists.
Courts of final appeal After Britain's colonial period, jurisdictions that had inherited and adopted England's common law developed their courts of final appeal in differing ways: jurisdictions still under the British crown are subject to the
Judicial Committee of the Privy Council in London. For a long period, the British
Dominions used London's Privy Council as their final appeal court, although one by one they eventually established their local
supreme court. New Zealand was the last Dominion to abandon the Privy Council, setting up its own
Supreme Court in 2004. Even after independence, many former British colonies in the
Commonwealth continued to use the Privy Council, as it offered a readily available high-grade service. In particular, several Caribbean Island nations found the Privy Council advantageous.
International law and commerce Britain is a
dualist in its relationship with international law, so international treaties must be formally ratified by Parliament and incorporated into statute before such
supranational laws become binding in the UK. Britain has long been a major trading nation, exerting a strong influence on the law of
shipping and
maritime trade. The English law of
salvage,
collisions, ship arrest, and
carriage of goods by sea are subject to international conventions which Britain played a leading role in drafting. Many of these conventions incorporate principles derived from English common law and documentary procedures. ==British jurisdictions==