The Development of the Common Law

     We now turn to a bit more depth on the origins of the common law system. We will return to aspects of this throughout the course; at present, the goal is to provide an overview of some major themes to help orient you.

     The Early Development of the Common Law

     What came to be known as the common law began to develop in England after the Norman conquest in 1066. The Norman kings established a body of courts under the jurisdiction of the king, rather than directly under the jurisdiction of local lords, as had been the case prior to the conquest.

     King Henry II did much to institutionalize the common law. He began the practice of sending judges from his court across the country. These judges would resolve cases on a one by one basis, reaching the result they considered fair. However, these judges would return to London and discuss the results of their labors with the other justices of the crown. Over time, a practice developed where the judges followed the decisions of other justices who had faced the same issue. This developed into the doctrine we now know as stare decisis.

     The King’s courts also revived the jury system, where members of the community were impaneled to resolve issues placed before them. The early juries bore little resemblance to today’s modern jury, and were expected to rely upon their local knowledge in assessing the facts of the case. Again, however, from these early beginnings arose the division of labor between the judges, who were in charge of applying the law, and the jury, which was expected to determine the facts.

     Important to the development of the common law was the system of bringing the case into court. In the common law courts, the case began with the filing of a writ. Early on, a writ was simply a statement of what the dispute was about. However, over time the writs became formalized and for a case to be able to go forward the facts pleaded had to fit within one of the established writs, some of which roughly correspond to today’s causes of action.

     In determining whether a given set of facts fit within one of the established writs, the common law judges effectively were making law. They determined the boundaries of the cause of action. They did this from the beginning of the common law system, and were in fact making law in this nature before the British Parliament became a legislative body.

     The judges of the time, however, apparently did not view themselves as creating law. Rather, they seem to have viewed the law as something that existed independently, and in their labors they were merely identifying the contours of the law. In the ideology of the time, law was something that was discovered, rather than created.

     Over time, the system of writs became very rigid and formalized. Failure to complete the proper writ would lead to dismissal of the action, although it could be refiled later under the proper writ. Similarly, the common law defenses were rigidly defined, and failure to assert a defense that fit with the facts as they were established could be a fatal error. The rigidity of the common law was one of the factors that led to the evolution in the United Kingdom of a parallel system of justice known as equity.