The Origins of the Common Law System

The common law originally derived its name from the centralization of the English government, including the administration of justice, beginning with the Norman Conquest of England in 1066. A body of law eventually developed, the common law, the law common and applicable to all Englishmen. The classic definition of the common law is the unwritten customary law as found by the courts.(1) A suit at law, a lawsuit, was commenced in the medieval English courts of law. The plaintiff petitioned for a writ based on law and custom, issued by the court directing the defendant to either do justice to the plaintiff or appear in court and answer the accusations presented. In 1216, there were fifty categories of writs. By the early fourteenth century, the number had grown to 890. The writ system gave rise to forms of action, procedural devices used to give expression to the recognized theories of liability.

The writ system was exceedingly formalistic and technical. The failure to select the proper form of action or writ would result in the dismissal of the suit. The plaintiff also had to elect the remedy being sought in advance and could not subsequently amend the pleadings to conform to the evidence presented. The forms of actions were divided into three categories as determined by the relief sought: real actions brought for the recovery of real property (real estate); mixed actions brought to recover real property and damages for injury to it; and personal actions brought to recover debts or personal property, or for injuries to personal property or contractual rights… Juries were used by the court of law to decide issues of fact, allowing the defendant to be tried by a court of her peers.

Except for Louisiana, whose legal system is based primarily on the Napoleonic Code Civil, individual American states have adopted to varying degrees some form of common law principles at different times. Prior to the revolution, every colony had a complete, and sometimes rather elaborate, statutory code. English common law was adopted by some states as a system subsidiary to the legislation. The older southern American colonies were those most heavily influenced. After the Revolution, the English common law enjoyed a Renaissance, adopted frequently by new and older states. During this phase, its influence was stronger than earlier in the colonies…

The grip of the common law system weakened again in many American jurisdictions during the mid-1800’s with a general movement toward codification, as can be seen with the Field Codes in New York. That trend has continued up to the present…

Excerpted with permission of the author from: American Business Law A Civil Law Perspective, Laura Carlson, J.D.(USA), LL.M.(Sweden)

(1) For an interesting discussion as to whether a “common law system” ever actually existed in medieval England, see J.W. TUBBS, THE COMMON LAW MIND, MEDIEVAL AND EARLY MODERN CONCEPTIONS (John Hopkins University Press 2000), who argues that the English legal system from the 12th century forward has always been based on statutes, case law and custom, originating in part from the Canon and Roman laws.