Common Law

Abstract

The term common law came in to use in England during the early Middle Ages when a ‘common’ repertoire of norms and understandings was recognized across the whole realm as central government consolidated. These understandings became institutionalized as law when invoked to underpin the decisions of judges in the royal courts. Subsequently, the method distinctive to the common law lay in the procedure under which lawyers recovered the rules to underpin their arguments, and judges to justify their decisions, from the records of earlier judgments. This procedure, now widely diffused through English settlement and colonial expansion, contrasts with that of the continental civil law world under which the judge seeks the rules to ground a decision in an authoritative, ultimately codified, text. Attempts to ‘theorize’ the common law, in the sense of drawing together rules and procedure for the purposes of exposition and commentary, were made from a very early stage, but all the great English legal texts of the medieval and early modern periods were prepared by practitioners rather than by scholars in the universities. Only from the early nineteenth century did a body of specifically legal theory, rooted in the common law tradition yet distanced from practice, begin to develop in England. This body of theory links law firmly to government and maintains a consistent focus on judicial decision-making, the enduring kernel of the common law.