Revision sheet: Construction and Expansion of Common Law

📋 Course Outline

1. Norman Conquest and Legal Transition
2. Before 1066: Local Customary Law
3. Royal Unification and Feudal Order
4. Royal Courts and Itinerant Justice
5. Henri II and Judicial Systematization
6. Procedure, Writs and Jury
7. Doctrine and the Jurisprudential Foundation
8. Consolidation Against Equity and Statutes
9. Precedent, Reform and Judicial Authority
10. Global Reception of English Law
11. Colonial Adaptation and Legal Diversity

📅 Key Dates

1. 1066Is the symbolic date at which most legal historians locate the beginning of the common-law model, following the Norman conquest of England.
2. 1166The centenary of the Norman conquest, Henry II began a major process of centralization and systematization of English justice.
3. 1675Under Chancellor Nottingham, equity became bound by judicial precedent, limiting its earlier risk of arbitrariness.

📖 1. Norman Conquest and Legal Transition

📝 Essential Points

• William the Conqueror, Duke of Normandy, took possession of England after defeating the English king at the Battle of Hastings and brought Norman customary law and a feudal political and social organization.

• The Norman conquest produced a transition toward common law through a compromise that preserved existing customs while progressively placing them under royal authority.

💡 Memory Hook

1066 → compromise → royal authority

📖 2. Before 1066: Local Customary Law

★ Must-know

• Before 1066, English law was mainly composed of unwritten customs that varied from one community to another.

• Roman law applied to Romans living in England but did not generally impose itself on the Celtic population, so it did not acquire the dominant influence it had in continental civil-law systems.

Further detail

• The Angles and Saxons introduced some written rules, but English law remained essentially customary and lacked territorial unity.

• In the tenth century, England was divided into shires, counties and hundreds, but these territorial divisions remained autonomous and governed by different customs.

📖 3. Royal Unification and Feudal Order

★ Must-know

• The Normans rejected both the preservation of completely autonomous local practices and the forcible replacement of all existing law, choosing instead a pragmatic institutional compromise.

• The Normans maintained Anglo-Saxon customs, local authorities and local assemblies while progressively subjecting them to royal supervision in the name of the King's peace.

• The curia regis, or King's Council, played a central role in the political and legal unification of England.

Further detail

• William I divided England into fiefs, whose lords owed him loyalty and counsel through the curia regis.

📖 4. Royal Courts and Itinerant Justice

📝 Essential Points

• Local courts such as the shire courts and hundred courts continued to decide disputes, while the curia legis was developed to control and progressively unify the kingdom.

• Under Henry I, royal eyres travelled through England to perform administrative tasks, represent royal authority and administer justice on the King's behalf.

• When the eyres returned to court, they shared their knowledge of local customs and their judicial decisions, creating a common body of practical legal knowledge.

📌 Common law emerged as a judicial creation based on judges solving concrete disputes, rather than as a direct imposition of Norman custom or Roman codified law.

💡 Memory Hook

Local courts → eyres → shared legal knowledge

📖 5. Henri II and Judicial Systematization

📝 Essential Points

• From 1166, Henry II made the eyres' circuits annual and general throughout England, strengthening royal power and responding to disputes over land and noble abuses.

• In 1178 Henry II created the King's Bench, a permanent royal court concerned with matters of royal interest, including Crown pleas and important criminal affairs.

• The Court of Exchequer handled disputes concerning taxes and financial matters, while the Court of Common Pleas handled civil disputes between private parties and reviewed local-court decisions.

📖 6. Procedure, Writs and Jury

🔑 Key Concepts & Definitions

• Writ : A written document issued by the royal chancery, usually for a fee, that authorizes a claimant meeting recognized conditions to bring a specific action before a royal court.

📝 Essential Points

📌 Each writ corresponded to a particular judicial action and its procedural rules, so a claim was possible only when an appropriate writ existed.

• The 1166 Assize of Clarendon strengthened the assize system, under which a jury of twelve local men determined the facts of civil or criminal disputes.

📌 In the common-law jury system, the jury decided the facts and the judge supervised procedure rather than deciding the factual dispute alone.

📖 7. Doctrine and the Jurisprudential Foundation

★ Must-know

• Glanvill's Tractatus de legibus et consuetudinibus Anglicae was the first major doctrinal work on common law and contained eighty writs, with particular attention to royal-court procedure.

• The principles of common law drew from local and Norman customs, royal decisions and statutes, and some Roman, canon and mercantile law, but judges remained central in adapting them to new situations.

Further detail

• Glanvill's title referred to the laws and customs of England as a single kingdom, making the newly unified English law visible as a distinct legal system.

📖 8. Consolidation Against Equity and Statutes

🔑 Key Concepts & Definitions

• Equity : A parallel justice administered by the Chancellor according to conscience, natural justice, morality and fairness when common law or its writ procedure provides inadequate relief.

★ Must-know

• In the thirteenth century, Bracton's treatise presented common law and assembled approximately 2,000 decisions of royal courts and eyres.

📌 The Judicature Act 1873 provided that equity prevails when its principles conflict with common-law rules, and nineteenth-century reforms administratively fused the two systems in common courts.

Further detail

• The Year Books, created at the end of the thirteenth century, recorded litigation and procedure and provided the first use of the term commune ley, which became common law.

📖 9. Precedent, Reform and Judicial Authority

★ Must-know

📌 Medieval legislation was initially mainly declaratory, clarifying and simplifying existing common law rather than creating an entirely separate body of rules.

• The Grand Council of the King, composed of representatives of counties, towns, the clergy and the people, developed into the English Parliament and gradually sought independence from the King.

Further detail

• The Magna Carta was issued in 1215, the Statute of Winchester in 1259 and the Statute of Merchants in 1285 as important medieval legislative measures.

• In the fifteenth century, the Star Chamber, the Court of Requests, the Court of Admiralty and the Chancery competed with the ordinary common-law courts.

💡 Memory Hook

Reports → precedent → stare decisis

📖 10. Global Reception of English Law

🔑 Key Concepts & Definitions

• Stare decisis : The principle that courts should follow relevant judicial precedents, providing consistency and limiting judicial arbitrariness.

📝 Essential Points

• Francis Bacon advocated compiling and codifying English law, but his projects failed, partly because common-law practitioners in the House of Commons opposed codification.

• In Bonham's Case, Edward Coke stated that common law could hold a parliamentary statute ineffective when it contradicted reason or the common law.

• Blackstone's Commentaries on the Laws of England, published in 1765, distinguished statute law from unwritten common law and helped consolidate the intellectual authority of the system.

💡 Memory Hook

Britain → Europe → America → dominions

📖 11. Colonial Adaptation and Legal Diversity

★ Must-know

• In Calvin's Case in 1608, the Court of Exchequer established principles governing the reception of English law in conquered or acquired territories.

📌 According to Calvin's Case, when a Christian kingdom was conquered, its previous law continued until the English sovereign changed it, whereas conquest of an allegedly infidel kingdom abolished local law and replaced it with English law.

• In Campbell v Hall in 1774, settlers in supposedly uninhabited territories were considered to carry English law with them and to possess a right to create local rules through representative assemblies.

• English common law spread through the British Isles, including Ireland, Wales and Scotland, but Scotland remained a mixed system influenced by both Roman law and English common law.

Further detail

• The Treaty of Union of 1707 and House of Lords decisions in 1708 and 1710 facilitated the extension of English jurisprudential influence into Scotland.

📊 Synthesis Tables

Main Royal Courts

Court	Primary jurisdiction	Role in common law
King's Bench	Royal interests and major criminal matters	Permanent royal justice
Common Pleas	Civil disputes between private parties	Ordinary jurisdiction and review of local decisions
Exchequer	Taxes and financial disputes	Specialized royal justice
Chancery	Petitions and equitable relief	Flexible justice supplementing common law