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ORIGINS OF COMMON LAW December, 2002 Keywords: Law of England, Code of Hammurabi, customs, stare
decisis, William Blackstone, Henry de Bracton, Jeremy Bentham Common law is a vast area of law spanning centuries, continents, and
far too many philosophers to include them all in this size of an article.
Searching for a one basic and lucid idea of exactly what common law means
is not a light task and an undertaker of such a search may come away still
wanting. A complete definition can only be understood through defining
other terms, explaining the key principles, and reviewing case law. A
solid starting point for an understanding of a definition is to think of
common law in terms of law that comes from the common people, rather than
deriving from the legislation, which comes from the experts (Landry, 1997,
p.1). Legal systems based on the laws of England are typically described as
belonging to the common law tradition (Glaeser, 2001, p. 3). Common law
differs from statutory law not only in its foundation, but more
importantly in its views. It is law seen from the perspective of a judge
faced with a controversy, or a jury seeking to arrive at a verdict, not
from the point of view of sovereign monarch faced with civil war. In
court, statutes are law when statutes are there, but new cases come up
which statutes are law when statutes are there, but new cases come up
which statutes do not cover, and, of course, what statutes themselves mean
for a case requires interpretation. Common law is unwritten law (Stoner,
1992, p. 7). Code of Hammurabi In the fourteenth chapter of Genesis is a story involving Amraphel,
King of Shinar. This ancient King of Babylon is the author of four
thousand year old Code of Hammurabi. Throughout the code are several
variations and similarities to central concepts contained within the
philosophy of common law. Within the Code are instances of primitive
ethical concept of the human urge for vengeance for a wrong. This was held
customary (and is throughout several other religions, cultures, and bodies
of law) when applying the Code in Babylon. Justice was equating; giving
back to someone who has been robbed of something in effort to make them
whole again, even if only in principle. This is the basic idea behind any
formal punishment in Common Law England and the United States today. The
Code goes much further than may be expected in establishing compensations
for damages with well thought our methods of estimating the amount. There
are stringent provisions directed against judicial misconduct and against
subornation of perjury. There are references to witnesses, to the giving
of evidence under oath, and to depositions. In dealing with civil wrongs
and crimes, the usual method of proof was trial by water. The accused was
tossed into the river to establish guilt or innocence. Survival was proof
of innocence. This may be compared with the ordeal of water in early
English law, where survival was proof of guilt (Read, 1955, p. 15). Customs Common law is a result of a natural order which first solidified into
custom and then into law. Primitive man knew nothing of laws, all he knew
were customs which eventually evolved into rules of living. While no one
can point to the origins of our traditional moral rules, their function in
human society should be evident. These moral rules, or traditions, are
necessary to preserve the existing state of affairs; such that culture was
allowed to evolve, and in turn, with culture, civilizations arose (Landry,
1997, p. 4). The Royal Courts of the thirteenth century were confronted
with cases for decisions. There was no uniform body of statutes to rely
upon. The only available source was local custom. It did not take many
generations of Royal Judges, dealing with actual disputes, to establish
the local and divergent customary laws into a single jurisprudence which
was the Common Law of England (Read, 1955, p. 42). Roman Law Almost at the same time that William the Conqueror invaded England, a
revival of the study of Roman law began in Western Europe. Beginning in
Italy, it spread to Paris and then to Oxford. It was not a barbaric
version like earlier codes, but the Corpus Juris of Justinian. This body
of legal study was viewed at the time as being so sharp and intelligent
that more conservative forces became alarmed. In 1219, Pope Honorius III
forbade the teaching of Roman Law in the schools of Paris, then, and for a
long time after, under a similar ordinance concerning the schools of
London. A still more effective antidote to the teachings of Vacarius at
Oxford, was the later settlement of the professors of the common law in
the Inns of Court, between the Palace of Westminster and the cathedral.
Soon the cleric unfamiliar with any other form of law, found themselves in
the Royal Courts of England. When customs were searched for answers to
issues to no avail, it is certain that the principles of Roman Law were
implicated into the decisions and rulings. Henry de Bracton’s familiarity
with Roman Law and the channels through which he derived it, have been
demonstrated throughout his works. It is useless to suppose that such
knowledge was not used; especially in the solution of those problems for
which the ancient customs made no provision. But the influence of Roman
Law became in England secret, and as it were, illicit (Jenks, 1920, p.
20). Law Merchant The rise of cities presented a special problem. It was based on trade,
and trade requires laws. Trade demands laws that governing commercial
transactions: banking, contracts, shipping, agency and the like; very
different from the law of agricultural and feudal communities of the time.
At an early stage, the cities established the right to hold their own
courts; and, under the leadership of the Lombard cities, the Law Merchant
came into existence. It is thought to have its sources in ancient Italy
among tradesmen there. The Law Merchant contained much of the same sort of
rules of law governing trade and commerce as the Code of Hammurabi. In the
eighteenth century, Lord Mansfield, in his judgments, made the doctrines
of the Law Merchant an integral part of Common Law (Read, 1955, p. 35-36). When translated from the Latin, it literally means, “stand by things
decided.” Stare decisis has evolved as a most sacred rule of law. A judge
is to apply the law as it is presented to him through the previous
decisions of the court; it is not the judge’s function to make or remake
the law that is the function of the legislature. However, judges to make
law even though they try not to; indeed it is their function, under a
system of common law, to do so; but not consciously and only over the course of time, may years, as
numerous similar cases are heard and decided (Landry, 1997, p. 5). Common Law Origins of American Constitutionalism America identifies itself with the libertarian traditions of English constitutional history-Magna Carta, the 1628 Petition of Rights and the Bill of Rights of 1689 (O’Day, 1997, p. 29). So many of the self-evident truths of independence, trace their origins directly back to existing common law principles including habeas corpus (a judicial writ requiring that an incarcerated party be brought before a court to determine if the confinement is unlawful) and the rule of law (the idea that law, not the discretion of officials, should govern public affairs) (Beitzinger, 1976, p. 30); (Scheb, 1999, p. 710, 721). The reason for a basic relationship between English and American law should be fairly simple to grasp. English law arrived with the first settlers during the colonial period because all provinces’ legislation had to comply with the laws in England. To say that English legal values became entrenched in America’s legal values would be an understatement. Aspiring lawyers came to be educated at the Inns of Court. Over 2,500 copies of William Blackstone’s Commentaries were sold as the key practitioner text prior to 1776 (Lairg, 2000, p. 2). The philosophy in the Federal Bill of Rights was a radical departure
from contemporary English thinking. Both nations had solid democratic
beliefs, under the conviction that government should obey the popular
will. But in England, attention was focused on the democratic structure of
government. Oliver Cromwell had encourage experimentation with
governmental structure, and English lawyers were proud of the mixed
monarchy of King and Parliament which had emerged as the triumphant
product of the Civil War. This inherent structural emphasis was advanced
by the writings of Jeremy Bentham. He drove a firm wedge between law and
morality and laid weight on the form, not the content, of law making. In
this way, the promise by early seventeenth century judges to annul Acts of
Parliament that proved against common right and reason was soon forgotten,
and constitutional reform in the nineteenth century was geared towards
structural accountability (Lairg, 2000, p. 3). Common law methodology and philosophy was ideally suited to
Independence. Sir Edward Coke and Thomas Locke wrote of the common law as
a libertarian institution within which a strong, independent judiciary
protected individuals from monarchical extremes. The significance of
Entick v. Carrington was not lost on Jefferson. He saw the common law as
espousing the rights-based philosophy that the War of Independence had
sought to achieve. Government according to law was an obvious foundation
stone for a new state with respect for the rights of man. So independence
did not subdue the common law tide. It established the need for the active
and effective judiciary which lies at the heart of any common law system (Lairg,
2000, p. 4). Common law methodology lies at the heart of English and American law,
even in areas, such as the constitution, where American arrangements
appear to be very different. Both countries have long traditions of
protecting basic liberties, but there have been differing philosophical
and cultural influences on the legal structure. In both countries the
common law has delivered basic doctrines that facilitate the contrasting
approaches of both systems. The common law’s capacity to respond to
localizing influences explains how both systems recognize differences of
substance within strikingly similar legal frameworks (Lairg, 2000, p.11). Yet localizing influences are diminishing. The problems that will
confront Anglo-American law in the twenty-first century are no longer
parochial; they are of international proportions. The old common law
concepts must soon be developed to encompass issues such as genetic
reproduction and regulation of the Internet. Mutual guidance will
inevitably be sought throughout the common law world. The House of Lords
has already begun to look to American experience with increasing
regularity when considering the response of English law to novel problems,
such as sanctioning the withdrawal of life support from hospital patients
in a permanent vegetative state or fixing the boundaries of increasingly
intrusive comment on the lives of public figures. This tendency can only
be expected to grow with the progressive convergence of cultural and
scientific influences across the world (Lairg, 2000, p. 11). The Human Rights Act provides a fine example of the ways in which
English law can benefit from American experience. In October of 2000,
English law finally made the transition to the rights based system that
has existed in the United States for over two hundred years. We have come
to accept that American experience shows that a written declaration
provides a more certain safeguard of individuals rights than procedural
democracy through a sovereign Parliament, indispensable though that is (Lairg,
2000, p. 11). Beitzinger (1976). The philosophy of law of four American founding
fathers. American Juris, 21, 1. David, R. and Brierley, J. (1978). Major Legal Systems in the World
Today. New York: Macmillan Publishing Co. Glaeser, Edward and Shleifer, Andrei (2001). Legal Origins (Working
Paper 8272). Cambridge: National Bureau of Economic Research. Jenks, Edward A Short History of English Law: From the Earliest Times
to the End of the Year 1919. London: Methuen & Co. Ltd, 1920. Lairg, Irvine (2000). Inner Temple Lecture: The Common Origins of
English and American Law. London: Inner Temple. Landry, Peter (1997). The common law: tradition and stare decisis.
Retrieved November 18, 2002 from http://www.blupete.com/Literature/Essays/BluePete/LawCom.htm/ Read, John E. A Series of Four Lectures on the Origins and Nature of
the Law. Newfoundland Memorial University of Newfoundland, 1955. Scheb, John M. and Scheb, John M. II. Criminal Law and Procedure.
Belmont, CA: Wadsworth Publishing Company, 1999. Stoner, James R. Common Law and Liberal Theory: Coke, Hobbes, and the
Origins of American Constitutionalism. Lawrence, KS: University Press of
Kansas, 1992. Thurbin, Daye. Crime and Punishment: A Critical Survey of the Origins
and Evolution of the Common Law. Great Britain: Idle Press, 1998. For further reference:
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