ORIGINS OF COMMON LAW (1) Keywords: Law of England, Code of Hammurabi, customs, stare decisis, William Blackstone, Henry

de Bracton, Jeremy Bentham Common law is a vast area of law spanning centuries, continents, and far too many philosophers to include them all in this size of an article. Searching for a one basic and lucid idea of exactly what common law means is not a light task and an undertaker of such a search may come away still wanting. A complete definition can only be understood through defining other terms, explaining the key principles, and reviewing case law. A solid starting point for an understanding of a definition is to think of common law in terms of law that comes from the common people, rather than deriving from the legislation, which comes from the experts (Landry, 1997, p.1). Legal systems based on the laws of England are typically described as belonging to the common law tradition (Glaeser, 2001, p. 3). Common law differs from statutory law not only in its foundation, but more importantly in its views. It is law seen from the perspective of a judge faced with a controversy, or a jury seeking to arrive at a verdict, not from the point of view of sovereign monarch faced with civil war. In court, statutes are law when statutes are there, but new cases come up which statutes are law when statutes are there, but new cases come up which statutes do not cover, and, of course, what statutes themselves mean for a case requires interpretation. Common law is unwritten law (Stoner, 1992, p. 7). Though it has suffered at the hands of legislators, common law is still followed in all major English speaking countries around the world (Landry, 1997, p. 3). It was not until the thirteenth century that a law common to all of England was established by the royal courts of justice at Westminster. In its early days, the Kings Courts only heard cases of exceptional importance of those that posed a threat to the kingdom. By the thirteenth century, certain parts of those courts functioned as independent organs. Sensitive to the feudal barons who sought control of their own affairs, the royal courts at first limited their jurisdiction to three types of cases: royal finances, matters affecting the ownership of land, and serious criminal matters affecting the security of the kingdom. But by the end of the Middle Ages the Royal Courts had become the only courts of justice (David, 1978, p. 55). Judges of the Royal Courts applied a uniform law that is, a law that was common throughout the kingdom. That practice of utilizing previous rulings as the basis for deciding future cases, evolved into what is now recognized as the Common Law System (Thurbin, 1998, p. 40-41). Origins of Common Law (2) Influences and Development of Common Law Code of Hammurabi In the fourteenth chapter of Genesis is a story involving Amraphel, King of Shinar. This ancient King of Babylon is the author of four thousand year old Code of Hammurabi. Throughout the code are several variations and similarities to central concepts contained within the philosophy of common law. Within the Code are instances of primitive ethical concept of the human urge for vengeance for a wrong. This was held customary (and is throughout several other religions, cultures, and bodies of law) when applying the Code in Babylon. Justice was equating; giving back to someone who has been robbed of something in effort to make them whole again, even if only in principle. This is the basic idea behind any formal punishment in Common Law England and the United States today. The Code goes much further than may be expected in establishing compensations for damages with well thought our methods of

estimating the amount. There are stringent provisions directed against judicial misconduct and against subornation of perjury. There are references to witnesses, to the giving of evidence under oath, and to depositions. In dealing with civil wrongs and crimes, the usual method of proof was trial by water. The accused was tossed into the river to establish guilt or innocence. Survival was proof of innocence. This may be compared with the ordeal of water in early English law, where survival was proof of guilt (Read, 1955, p. 15). Customs Common law is a result of a natural order which first solidified into custom and then into law. Primitive man knew nothing of laws, all he knew were customs which eventually evolved into rules of living. While no one can point to the origins of our traditional moral rules, their function in human society should be evident. These moral rules, or traditions, are necessary to preserve the existing state of affairs; such that culture was allowed to evolve, and in turn, with culture, civilizations arose (Landry, 1997, p. 4). The Royal Courts of the thirteenth century were confronted with cases for decisions. There was no uniform body of statutes to rely upon. The only available source was local custom. It did not take many generations of Royal Judges, dealing with actual disputes, to establish the local and divergent customary laws into a single jurisprudence which was the Common Law of England (Read, 1955, p. 42). Roman Law Almost at the same time that William the Conqueror invaded England, a revival of the study of Roman law began in Western Europe. Beginning in Italy, it spread to Paris and then to Oxford. It was not a barbaric version like earlier codes, but the Corpus Juris of Justinian. This body of legal study was viewed at the time as being so sharp and intelligent that more conservative forces became alarmed. In 1219, Pope Honorius III forbade the teaching of Roman Law in the schools of Paris, then, and for a long time after, under a similar ordinance concerning the schools of London. A still more effective antidote to the teachings of Vacarius at Oxford, was the later settlement of the professors of the common law in the Inns of Court, between the Palace of Westminster and the cathedral. Soon the cleric unfamiliar with any other form of law, found themselves in the Royal Courts of England. When customs were searched for answers to issues to no avail, it is certain that the principles of Roman Law were implicated into the decisions and rulings. Henry de Bractons familiarity with Roman Law and the channels through which he derived it, have been demonstrated throughout his works. It is useless to suppose that such knowledge was not used; especially in the solution of those problems for which the ancient customs made no provision. But the influence of Roman Law became in England secret, and as it were, illicit (Jenks, 1920, p. 20). Origins of Common Law (3) Law Merchant The rise of cities presented a special problem. It was based on trade, and trade requires laws. Trade demands laws that governing commercial transactions: banking, contracts, shipping, agency and the like; very different from the law of agricultural and feudal communities of the time. At an early stage, the cities established the right to hold their own courts; and, under the leadership of the Lombard cities, the Law Merchant came into existence. It is thought to have its sources in ancient Italy among tradesmen there. The Law Merchant contained much of the same sort of rules of law governing trade and commerce as the Code of Hammurabi. In the eighteenth century, Lord Mansfield, in his judgments,

made the doctrines of the Law Merchant an integral part of Common Law (Read, 1955, p. 35-36). Stare Decisis When translated from the Latin, it literally means, stand by things decided. Stare decisis has evolved as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court; it is not the judges function to make or remake the law that is the function of the legislature. However, judges to make law even though they try not to; indeed it is their function, under a system of common law, to do so; but not consciously and only over the course of time, may years, as numerous similar cases are heard and decided (Landry, 1997, p. 5). Common Law Origins of American Constitutionalism America identifies itself with the libertarian traditions of English constitutional history-Magna Carta, the 1628 Petition of Rights and the Bill of Rights of 1689 (ODay, 1997, p. 29). So many of the self-evident truths of independence, trace their origins directly back to existing common law principles including habeas corpus (a judicial writ requiring that an incarcerated party be brought before a court to determine if the confinement is unlawful) and the rule of law (the idea that law, not the discretion of officials, should govern public affairs) (Beitzinger, 1976, p. 30); (Scheb, 1999, p. 710, 721). The reason for a basic relationship between English and American law should be fairly simple to grasp. English law arrived with the first settlers during the colonial period because all provinces legislation had to comply with the laws in England. To say that English legal values became entrenched in Americas legal values would be an understatement. Aspiring lawyers came to be educated at the Inns of Court. Over 2,500 copies of William Blackstones Commentaries were sold as the key practitioner text prior to 1776 (Lairg, 2000, p. 2). The philosophy in the Federal Bill of Rights was a radical departure from contemporary English thinking. Both nations had solid democratic beliefs, under the conviction that government should obey the popular will. But in England, attention was focused on the democratic structure of government. Oliver Cromwell had encourage experimentation with governmental structure, and English lawyers were proud of the mixed monarchy of King and Parliament which had emerged as the triumphant product of the Civil War. This inherent structural emphasis was advanced by the writings of Jeremy Bentham. He drove a firm wedge between law and morality and laid weight on the form, not the content, of law making. In this way, the promise by early seventeenth century judges to annul Acts of Parliament that proved against common right and reason was soon forgotten, and constitutional reform in the nineteenth century was geared towards structural accountability (Lairg, 2000, p. 3). Common law methodology and philosophy was ideally suited to Independence. Sir Edward Coke and Thomas Locke wrote of the common law as a libertarian institution within which a strong, independent judiciary protected individuals from monarchical extremes. The significance of Entick v. Carrington was not lost onJefferson. He saw the common law as espousing the rights-based philosophy that the War of Independence had sought to achieve. Government according to law was an obvious foundation stone for a new state with respect for the rights of man. So independence did not subdue the common law tide. It established the need for the active and effective judiciary which lies at the heart of any common law system (Lairg, 2000, p. 4).

Common law methodology lies at the heart of English and American law, even in areas, such as the constitution, where American arrangements appear to be very different. Both countries have long traditions of protecting basic liberties, but there have been differing philosophical and cultural influences on the legal structure. In both countries the common law has delivered basic doctrines that facilitate the contrasting approaches of both systems. The common laws capacity to respond to localizing influences explains how both systems recognize differences of substance within strikingly similar legal frameworks (Lairg, 2000, p.11). Yet localizing influences are diminishing. The problems that will confront Anglo-American law in the twenty-first century are no longer parochial; they are of international proportions. The old common law concepts must soon be developed to encompass issues such as genetic reproduction and regulation of the Internet. Mutual guidance will inevitably be sought throughout the common law world. The House of Lords has already begun to look to American experience with increasing regularity when considering the response of English law to novel problems, such as sanctioning the withdrawal of life support from hospital patients in a permanent vegetative state or fixing the boundaries of increasingly intrusive comment on the lives of public figures. This tendency can only be expected to grow with the progressive convergence of cultural and scientific influences across the world (Lairg, 2000, p. 11). The Human Rights Act provides a fine example of the ways in which English law can benefit from American experience. In October of 2000, English law finally made the transition to the rights based system that has existed in the United States for over two hundred years. We have come to accept that American experience shows that a written declaration provides a more certain safeguard of individuals rights than procedural democracy through a sovereign Parliament, indispensable though that is (Lairg, 2000, p. 11).