Common Law

The evolution of the common law began when Henry II established a system of English royal courts in 1166. These courts employed juries and were presided over by circuit-riding judges. These common law courts were not the only court system in medieval England. Ecclesiastical courts enforced church law and claimed jurisdiction over any crime involving a member of the clergy. Common law courts also stood in contrast to the chancery courts, or courts of equity. The highly complex and formalized system of writs and remedies developed by the law courts sometimes denied a plaintiff fair and equitable compensation for his injury. In such cases, the aggrieved party had the right to petition the chancery courts for redress.

These courts remained distinct in England until the judicature act of 1875. The decisions of English equity courts are included in common law as adopted in the United States. There is a general trend in both the U.S. and England of merging the two branches of jurisprudence. Under the Federal Rules of Civil Procedure, which came into effect in 1938, plaintiffs in federal courts may bring all claims, whether under law or equity, in the same action.

English common law also developed in contrast to civil law, or the code-based law of continental Europe. Civil courts viewed the Roman law code of Justinian and subsequent statutes as the exclusive primary sources of law, whereas English courts held that, in the absence of a statute on the subject, courts could create a rule of law through analogy with previous cases. Prior court decisions, if not overruled, then became binding on future courts as primary and definitive statements of the law. This doctrine, known as stare decisis, appeared as early as the 13th century, when judges began citing previous decisions in their verdicts. Civil law and common law remain distinct in spite of the increasing codification of law in both the United States and the United Kingdom.