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Common law is the system of law used to adjudicate private disputes that was developed in England and is now in use in most of the United States (except Louisiana), Canada (except Quebec), Australia, New Zealand and other British colonies. It is characterized by the development of legal principles based on past judicial decisions and the principle of stare decisis (like cases should be decided alike) rather than codified statutes.


History Edit

The origins of common law date to the reign of William the Conqueror after the Battle of Hastings in 1066. Anglo-Saxon kings prior to 1066 had allowed legal disputes to be settled by local judges based on local custom and the application of law to settle disputes throughout England was therefore very inconsistent.

William set up a system of travelling judges acting under his authority who would travel in circuits between communities. They were instructed to handle cases as similarly as they could. They were also required to provide written reasons of their decisions which other judges could refer to. The indexing of cases was systematized and eventually placed in folios rather than the original scrolls. Even before the introduction of movable type printing to England in the 15th century, the law had for the most part settled largely into the form we know today.

However, several other competing court systems developed in England after the introduction of the common law:

  • Ecclesiastical law, which was used to settle disputes over religious matters, pre-dated the common law and continued to be used for centuries. It still settled matters related to estates and marriage.
  • Equity, which developed shortly after the common law when the common law did not provide appropriate remedies to settle disputes.
  • Exchequer courts, which settled matters related to taxation.
  • There were also several specialized courts, dealing with matters such as Admiralty.

Common law spread to British colonies, and often remained long after the British no longer had control. Common law continued in all of the original thirteen colonies of the United States after the American Revolution.

However, by the late 18th century, the explosion of different courts was making pursuing legal remedies difficult, even with skilled attorneys. Lawsuits were often started in the wrong type of court. As a result, the British parliament passed the Judicature Act, which largely consolidated all the courts into one set of courts. As such, modern courts often call themselves common law courts and operate on the same basis, but also allow remedies that were not available in common law courts. Moreover, current common law is largely dominated by the law of equity rather than the original common law. Other common law jurisdictions soon followed suit.

InfluencesEdit

Islamic lawEdit

Since the publication of legal scholar John Makdisi's "The Islamic Origins of the Common Law" in the North Carolina Law Review,[1] there has been debate over whether English common law was inspired by medieval Islamic law.[2] Some scholars have argued that several fundamental common law institutions may have been adapted from similar legal institutions in medieval Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture). In his 1999 paper, Makdisi drew comparisons between the "royal English contract protected by the action of debt" and the "Islamic Aqd", the "English assize of novel disseisin" and the "Islamic Istihqaq", and the "English jury" and the "Islamic Lafif" in classical Maliki jurisprudence, and argued that these institutions were transmitted to England by the Normans,[1] "through the close connection between the Norman kingdoms of Roger II in Sicily—ruling over a conquered Islamic administration—and Henry II in England."[3] Makdisi also argued that English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court" in England (which he asserts are parallel to Madrasas in Islam) and the "European commenda" (parallel to Islamic Qirad) may have also originated from Islamic law.[1] He states that the methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.[4] Makdisi claims these similarities and influences suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[1]

Other legal scholars such as Monica Gaudiosi, Gamal Moursi Badr and A. Hudson have argued that the English trust and agency institutions in common law, which were introduced by Crusaders, may have been adapted from the Islamic Waqf and Hawala institutions they came across in the Middle East.[5][6][7] Dr. Paul Brand also notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar. Brand also points out, however, that the Knights Templar were primarily concerned with fighting the Muslims rather than learning from them, making it less likely that they had knowledge of Muslim legal institutions.[2] It is also worth noting that transferring property to another for the "use" of another developed largely in response to the requirements of feudal inheritance law. Trust law, in particular, is a creature of equity, which derived from the parallel jurisdiction of the Lord Chancellor to decide matters independently to the Royal Courts.

Roman lawEdit

The term "common law" is often used as a contrast to Roman-derived "civil law" (connotation 2), and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.

By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.[8] However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.[9] One of the first and throughout its history one of the most significant treatises of the common law, Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian’s Institutes.[10] The impact Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem and in personam used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th century. Signs of this can be found in Blackstone’s Commentaries on the Laws of England,[11] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.[12] As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.[13]

See alsoEdit

NotesEdit

  1. 1.0 1.1 1.2 1.3 (Makdisi 1999)
  2. 2.0 2.1 Mukul Devichand (24 September 2008). "Is English law related to Muslim law?". BBC News. Retrieved on 2008-10-05.
  3. Hussain, Jamila (2001), "Book Review: The Justice of Islam by Lawrence Rosen", Melbourne University Law Review 30
  4. El-Gamal, Mahmoud A. (2006), Islamic Finance: Law, Economics, and Practice, Cambridge University Press, p. 16, ISBN 0521864143
  5. Gaudiosi, Monica M. (April 1988), "The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College", University of Pennsylvania Law Review 136 (4): 1231–1261
  6. Badr, Gamal Moursi (Spring, 1978), "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law 26 (2 - Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977): 187–198 [196–8], Error: Bad DOI specified
  7. Hudson, A. (2003), Equity and Trusts (3rd ed.), London: Cavendish Publishing, p. 32, ISBN 1-85941-729-9
  8. E.g., R. C. van Caenegem, The Birth of the English Common Law 89-92 (1988).
  9. E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
  10. E.g., George E. Woodbine (ed.), Samuel E. Thorne (transl.), Bracton on the Laws and Customs of England, Vol. I (Introduction) 46 (1968); Carl Güterbock, Bracton and his Relation to the Roman Law 35-38 (1866).
  11. Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24 (download at http://www.szier.ch - archive).
  12. Peter Stein, Continental Influences on English Legal thought, 1600 - 1900, in Peter Stein, The Character and Influence of the Roman Civil Law 223 et seq. (1988).
  13. See generally Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007 (download at http://www.szier.ch - archive).

ReferencesEdit

  • Friedman, Lawrence Meir (2005). A History of American Law, 3, Simon and Schuster. ISBN 0743282582. 
  • Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage, 2, revised, Oxford University Press US. ISBN 0195142365. 
  • Morrison, Alan B. (1996). Fundamentals of American Law. Oxford University Press US. ISBN 0198764057. 
  • Salmond, John William (1907). Jurisprudence, or, The Theory of the Law, 2, Stevens and Haynes. 

External linksEdit

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