Where did common law originate?
85441#17
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the judge-made law that developed from the early Middle Ages as described in a work 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 North America and elsewhere; and this law as further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s, and 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.
English law
5254#1
The common lawso named because it was "common" to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire spread the English legal system to its historical colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, and to the style of reasoning inherited from the English legal system.
Common law
5254#48
The common lawso named because it was "common" to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, as did the universities of Oxford and Cambridge, and large landholders also held their own manorial and seigniorial courts as needed. Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law.
Common law
23524353#18
Australian blasphemy law originated in England where the continued existence of the common law offences of blasphemy was controversial. In 1985 the English Law Commission published a report on "Criminal Law: Offences against Religious and Public Worship", which recommended the abolition of blasphemy offences. The report noted that "there is no one agreed definition of blasphemy and blasphemous libel and that it would scarcely be practicable, even if it thought desirable, to amend the common law definition by statute". The authors added that "it is now clear that none of the arguments for retaining a law of blasphemy are sufficiently strong to support this view and each of them is outweighed by other considerations which persuade us that a law of blasphemy is not a necessary part of a criminal code. Moreover, we have no doubt that any replacement offence which might be devised would in practice prove to be unacceptably wide in ambit." The Commission concluded "that the common law offences of blasphemy and blasphemous libel should be abolished without replacement". These two offences were abolished in July 2008.
Blasphemy law in Australia
23524353#2
In England where the common law offences originated, the question was considered settled in 1838 by Gathercole's Case. Baron Charles Alderson, speaking for the court, declared that "A person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country". As Australia and Australian states and territories have no established religion it is doubtful that the common law offences of blasphemy and blasphemous libel apply in Australia.
Blasphemy law in Australia
34070165#6
During the seventeenth century, when settlers started establishing permanent settlements in North America, decisions concerning how the new legal system would work needed to be decided. The people who established the New England colonies came to the new world so that they could create a new society that fashioned itself on the rules and teachings of their religion. The Puritans who founded the colonies of Connecticut and Massachusetts created many rules that had basis in the Puritan faith. However, differences occurred within each colony as to the application of the law. For example, laws created in Massachusetts or Connecticut differed from laws created in Pennsylvania. Some of the differences in the rules within colonies came from the fact that different groups with different ideological backgrounds founded each colony. The Puritans founded the New England colonies, while the Quakers led by William Penn founded the colony of Pennsylvania. Due to the strong religious background of these colonies, colonists sought changes and improvements to the English common law. In many situations, the colonists would use a particular aspect of common law to build the foundation of a legal principle, but the details, such as the wording, implementation, and enforcement of said law fell to the colonists. The colonists did not want a carbon copy of English common law, as many of them left England and Europe in dispute of those laws, nor did the colonists decide upon a single, unified set of laws to govern the colonies as a large group. The colonies sought the means to create a legal system that looked out for each individual colony’s interests. If English common law coincided with what the colonists wanted, then the law remained unaltered. However, if the common law did not represent all of what the colonists wanted, they sought the freedom to change laws to something that best suited them.
Colonial American bastardy laws
1348555#1
While English common law originated in thirteenth century England and has then been transplanted through colonization and occupation to England’s ex-colonies (United States, Canada, Australia, and several countries in Central America, Africa and Asia), the Scandinavian common law was developed in Denmark and Sweden and the German common law sprang in Germany and Switzerland [Guerriero 2016a, p. 54]. These last four countries then exported their common law model to the respective colonies or to those jurisdictions (China, Greece, Japan, Romania, South Korea, Taiwan, Thailand, and Turkey), which were never colonized but borrowed their initial legal order from the European codes considered most advanced at the time [Guerriero 2016a, p. 54]. Civil law instead has its roots in Roman law, was incorporated by the Napoleonic codes first and then by both the Austrian and Russian Civil codes, and has been then introduced via mainly colonization and occupation into continental Europe, the Near East, Latin America, Africa, and Indochina. Bulgaria, Ethiopia, Iran, and Kazakhstan instead purposely borrowed their initial legal order from either France, Russia, or England [Guerriero 2016a, p. 54].
Legal origins theory
18949668#25
Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs. The concept of a "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges that had authority to create an institutionalized and unified system of law "common" to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or "Magna Carta" of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralized. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a systematized process of developing common law.
Law
5254#65
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims.
Common law
9426153#6
Common law jurisdictions in former members of the British empire, including the United States, Canada, India, South Africa, and Australia ultimately originate with the law of England and Wales. What distinguishes common law jurisdictions from their civil law counterparts is the concept of judge-made law and the principle of stare decisis - the idea, at its simplest, that courts are bound by the previous decisions of courts of the same or higher status. In the insurance law context, this meant that the decisions of early commercial judges such as Mansfield, Lord Eldon and Buller bound, or, outside England and Wales, were at the least highly persuasive to, their successors considering similar questions of law.
Insurance law
54007565#5
Stevens ambitiously tried to mix understated humor with serious legal comment. He explained that the article's purpose was "to examine whether the same types of forces that shaped the development of the common law also generated the Infield Fly Rule." Noting that England was the birthplace both of common law and of proto-baseball, Stevens discussed the Knickerbocker Base Ball Club, the first team using codified baseball rules, in 1845. For the club's members, the "rules which governed their contests clearly indicate that the game was to be played by gentlemen. Winning was not the objective; exercise was." As winning, however, came to be valued over exercise when the game spread beyond its gentlemanly origins, "written rules had to be made more and more specific in order to preserve the spirit of the game."
The Common Law Origins of the Infield Fly Rule
39126660#4
The law of trusts first developed in the 12th century from the time of the crusades under the jurisdiction of the King of England. The "common law" regarded property as an indivisible entity, as it had been done through Roman law and the continental version of civil law. Where it seemed "inequitable" (i.e. unfair) to let someone with legal title hold onto it, the King's representative, the Lord Chancellor who established the Courts of Chancery, had the discretion to declare that the real owner "in equity" (i.e. in all fairness) was another person. When a landowner left England to fight in the Crusades, he conveyed ownership of his lands in his absence to manage the estate and pay and receive feudal dues, on the understanding that the ownership would be conveyed back on his return. However, Crusaders often encountered refusal to hand over the property upon their return. Unfortunately for the Crusader, English common law did not recognize his claim. As far as the King's courts were concerned, the land belonged to the trustee, who was under no obligation to return it. The Crusader had no legal claim. The disgruntled Crusader would then petition the king, who would refer the matter to his Lord Chancellor. The Lord Chancellor could decide a case according to his conscience. At this time, the principle of equity was born. The Lord Chancellor would consider it "unconscionable" that the legal owner could go back on his word and deny the claims of the Crusader (the "true" owner). Therefore, he would find in favour of the returning Crusader. Over time, it became known that the Lord Chancellor's court (the Court of Chancery) would continually recognize the claim of a returning Crusader. The legal owner would hold the land for the benefit of the original owner, and would be compelled to convey it back to him when requested. The Crusader was the "beneficiary" and the acquaintance the "trustee". The term "use of land" was coined, and in time developed into what we now know as a "trust".
History of equity and trusts