What law originated in the early medieval era and

What is the English Common Law?



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common law originated in the early medieval era and parts of it are still in
use today in most member states of the British Commonwealth of Nations. English
common law was founded in the King’s Court (known at the time as Curia Regis).
The King’s Court is a single royal court which was arranged for most of the
country at Westminster, in London, England. English common law was primarily
established in the period after the Norman Conquest of England in 1066 CE, this
system replaced the legal system of the Anglo-Saxons.  The Anglo-Saxons were operating on a system where local customs governed most
matters. The Norman Conquest did not bring an immediate end to Anglo-Saxon law,
but as the feudal system was implemented, the government centralized, and
English common law was enacted. Some of the elements that were retained from
Anglo-Saxon rule were the jury, ordeals (trials by physical test or combat),
and the practice of outlawry (putting a person beyond the protection of the
law). Not unlike most other legal systems of the time, the English common law
originally did not apply substantive rights, (also known as substantive law),
but rather procedural law. The difference between substantive law and
procedural law is described by the example from Britannica encyclopedia 2
“substantive law would describe how two people might enter into a contract, procedural law would explain how someone
alleging a breach of contract might seek the courts’ help in enforcing the
agreement.” English common law evolved over time from using procedural law to
substantive law.



Trial by Ordeals

trial by ordeals is a system that has the accused perform extremely dangerous
and sometimes even deadly trials to prove their innocence. The purpose of the
trials is to have a higher force, (for European societies in the Middle Ages,
God), judge the incriminated, this is a concept known as iudicium Dei, which translates from Latin
to “the judgment of God”. It was believed that during the trial, God would
intervene and protect an innocent person. Even though this method is commonly
associated with medieval Europe and Christianity, the use of it can be found in
other areas of the world, such as India, Southeast Asia, and many parts of
Africa. Both the Ramayana (a Hindu epic), and the Old Testament (texts believed
to be the sacred word of God) have been found to describe trials by ordeal.  Trials by ordeal are still used today in Liberia under a different name “sassywood” but
are being discouraged. One of the most known trials is the “trial by water”,
which is infamous for being used on witches in the 17th century. A person
accused of being a witch would be dragged to the nearest body of water,
stripped to their underwear, bound and thrown into the water. The “logic” behind
this was that witches rejected the sacrament of Baptism, so the water would
reject their body, causing them to float. If a woman sank, then her innocence
was proven; the accused usually had a rope tied around their waist so that they
could be pulled up, but accidental deaths by drowning did happen. At the Fourth
Council of the Lateran in 1215 C.E, use of the trials by ordeals was prohibited
by Pope Innocent III; their use dissolved in the 14th and 15th
centuries, but some of them did make a return in the 16th and 17th
for witch hunts and trial by combat was
only officially repealed in 1819 CE.


























Sir William Blackstone, oil painting attributed to Sir Joshua









Jeremy Bentham, oil painting by H.W. Pickersgill


































Modernization of the English common law


modernization of English common law happened from the late 18th century
to the early 21st century. One of the most influential people in the process of modernizing English common
law was Sir William Blackstone. His most influential work was the “Commentaries

The Laws of
England” which consisted of four books: “Of
the Rights of Persons” dealt with family and public law; “Of
the Rights of Things” gave an outline of real-property law; “Of
Private Wrongs” covered civil liability, courts, and procedure;
and “Of Public Wrongs” was
a study of criminal law. Blackstone was not the most popular among the legal
community and was belittled for his superficiality. Lawyers and laymen alike came
to view it as an authoritative critique of the law. In the following century,
the fame of Blackstone was even greater in the United States than in his home country; after the American
Declaration of Independence (1776), the Commentaries became the primary
source of knowledge of English law in the new
world (North and South America).

Post the social turmoil of the French Revolution and the economic metamorphosis
that was the Industrial Revolution, there was high demand to modernize the law.
One of the most iconic figures in this
reformation was the English utilitarian philosopher Jeremy Bentham, who was prepared
to make radical changes to the legal system. He was a student of William
Blackstone and disliked the law that he had heard described in Blackstone’s
lectures. In 1769 he entered the bar3. But because Bentham was
living off an inheritance, he never actively practiced law and was slow
publishing works. He chiefly focused on making the law less technical and more accessible to the people.  His basic work, “An Introduction to the
Principles of Morals and Legislation” did not crop up until 1789. Bentham
largely attacked legal fictions and other
historical anomalies. He campaigned for two vital modifications in the legal
system: one, to bring about the greatest happiness for the greatest number,
instead of the courts making the law, legislators should; and two, the purpose
of law should differ with time and place. His book spread rapidly. Bentham
moved to France in 1792 where he was made
a French citizen. His input was respectfully received in most European and
American countries, however, what Bentham wanted most in life was for his ideas
to be drawn up into a legal code for Europe. Bentham’s ideology went on to
influence the evolution of civil law being practiced in much of Europe.  There were many more changes after Bentham,
all leading into what we would call law today.










Modern Law

Civil Law versus Common Law

            There are two main categories of modern
legal systems, civil law, and common law. There are approximately 150 countries
using civil law, such as China, and most of Europe, and only about 80 using
common law (Most of the British Commonwealth of Nations). Most countries,
especially the USA, use a combination of the systems. The primary difference
between the two systems is that common law uses past judgments, not every
situation is documented as a law. Whereas in a civil law system there is a written
constitution based on specific codes (example, tax law, civil code, and codes
covering corporate law) preserving basic rights and duties.


The roles of a judge and lawyer differ in
each system, in countries using civil law, judges could be described as
“investigators”. They ordinarily take lead in the proceedings by bringing
charges, establishing facts though examination of witnesses, and apply
techniques found in legal codes. In a civil law system, the lawyers represent
the client in civil proceedings, this includes advising clients on points of law and preparing legal pleadings for filing
with the court. The importance of vocal
arguments, presentations in-court, and active lawyering in court are reduced in
civil law when compared to common law. In countries using common law, lawyers
make presentations to the judge and
attempt to persuade others on facts and points of law. The matters are then
“refereed” by the judge5. 
The judge has more flexibility in a common law system to produce an
appropriate procedure for the conclusion of a case.





          Medieval English common law did affect modern law in many ways. English common law, is
modern law, in countries formerly belonging to the British Commonwealth of
Nations. However, modern English common law is such an evolved form of medieval
English common law, that a professor of law in the 11th century6
would barely be able to recognize it. The evolution of English common law has
been beneficial.  Without the time
between the construction of the English common law and now, we would still be
using crude methods of justice such as the trial by ordeal. The evolution of
English common law has not been quick or easy. It still has a long way to go,
because even today hundreds of people are falsely imprisoned7, and
that’s only the ones that we know of.













1 Based on the
judicial branch of the United States of America.

2 Under the caption
“Procedural law” from https://www.britannica.com/topic/common-law

3 A legal term for being admitted to practice law                                                                                                    
                        4 A law that has been organized by subject matter.
And sometimes the jury.                                                                                                                                                        
         6 Providing that they were
well educated which would be very rare for the time.                                                                        
 7 according to “The
National Registry of Exonerations” from http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2015.pdf 







History of Trial by Ordeal” by Arallyn
Primm. Created April 19, 2013, http://mentalfloss.com/article/50161/history-trial-ordeal/


“Common Law” by Andrew D.E. Lewis, Albert Roland Kiralfy, and Mary Ann Glendon
Created October 26, 2017.



“Procedural law” by Stephen C. Yeazell Geoffrey Hazard
Hans-Heinrich Jescheck Thomas Weigend Created: January 20, 2017



“Trial by Ordeal: Alife or Death
Method of Judgement” by ??WTY Created: October 2015



Last Modified: October 31, 2009