Historic Roots of the English Legal System

Scholars trace the creation of the English common law to the second half of the 12th century, at the time of Henry II.  Explains Belgian scholar Raoul Van Caenegem in The Birth of the English Common Law (Cambridge Univ. Press 1973), “the Common Law of England – so different from the jus commune or common learned law of the European universities – is the oldest national law in Europe.  It is the oldest body of law that was common to a whole kingdom and administered by central court with the nation-wide competence in first instance.  In the rest of Europe, law was either European or local, not national.”

Prof. Van Caenegem continues.  “The breakthrough of a centralized and modernized legal system took place exceptionally early in England (and Normandy), before Roman law was in a position to exert any profound influence . . .

“If the modernization of law came exceptionally early in England, it was also remarkably systematic.  The activity of the justices at Westminster and in eyre and the various actions with which they dealt formed a coherent whole and were grasped and described as such.  This new law and its judicial apparatus were national and royal.  Not local magnates, but the king and his central justices were the bearers of the whole system and application was nation-wide.  This was very unlike the Continent, were local and regional custom reigned supreme . . .

“The breach came during the momentous modernization of European society in general, and the law in particular, that took place in the 12th and 13th centuries, a watershed of the greatest importance . . .

The professor traces these developments to William the Conqueror’s invasion of England in 1066.  After losing control over Normandy at the beginning of the 12th century, the English rulers (of Norman descent) began to centralize the legal system in England.

“English law prefers precedent as a basis for judgments, and moves empirically from case to case, from one reality to another.  Continental law tends to move more theoretically by deductive reasoning, basing judgments on abstract principles; it is more conceptual, more scholastic and works with more definitions and distinctions.”

Holyrood Palace in Edinburgh

Twenty years of chaos during the first half of the 12th century gave Henry II a footing on which to establish binding legal precedent in a society that had been sorely lacking therein.  “It was a coincidence again that Henry II ruled after Stephen and Matilda had created such chaos that the country was ripe for the stern, nation-wide clean-up of the Assizes and the liquidation of judicial contradictions and uncertainties through centralization in the royal courts.”

“This Anglo-Norman law only became English after the loss of Normandy, nurtured (while it withered away in Normandy) by a state that had turned from the Anglo-Norman into an English state, with English instead of French kings, justices of English descent on the benches, and with an aristocracy that had in the end become so English that the conquest was viewed with distaste by men who were French in speech and habits, and who owned their whole family fortune to William I and his successors.  It was in the 13th century the diffusion of Norman and English into one nation took place in that, and Common Law, which bound together for freemen of every descent, became truly English.”

Who created the English Common Law?  Not surprisingly, it was initially established to protect the upper class.  “The Common Law took no interest in the unfree peasants who were harshly excluded and amerced if they tried to use its benefits.  The man who created it were members of a small aristocracy and it was accessible to them and the free minority of the natives [ ] and they created it in order to preserve harmony among the free, landowning top class.”

(The professor notes that French was the language of the English legal system from the late 13th century until 1731, when English was established as the official language of the law in England by an act of Parliament of George II.)