The Proliferation of the Common Law: From Medieval England to Colonialism to Modern Legal Systems

Written by Wirasena Murdono

The Common Law is one of the world’s major legal systems alongside Civil Law and Religious Law. Unlike systems primarily based on comprehensive written codes, Common Law develops largely through judicial decisions alongside legislated laws. Courts resolve disputes by applying legislation and the principles of previous cases, and in doing so, create new legal principles. This is known as the doctrine of precedent – where the accumulation of case law forms a significant body of laws alongside enacted legislations.

The Common Law system exists in several countries, all with historical ties to the United

Kingdom including the United States, Singapore, Hong Kong, Canada, an Australia. By contrast, many countries in continental Europe follow the civil law tradition which emphasies detailed legal codes as opposed to judge-made law. Other jurisdictions rely heavily on religious legal systems like Saudi Arabia’s legal framework which is based on Islamic (Shariah) Law. Though vast and interesting, the history of The Common Law’s development is not well known.

This article will go over some of the key points in the history of Common Law, where it is now, and where it is headed in the future.

Origins

Prior to the Norman Conquest of 1066, England’s legal landscape consisted largely of customary laws (largely unwritten, traditional practices within a community) administered in regional courts. Beginning in the 12th century, the English monarchy under King Henry II reformed the administration of justice. Royal judges travelled across the country hearing disputes and applying consistent legal principles. Their decisions were recorded and became gradually recognised as authoritative guidance for later cases. Over time, these judicial decisions formed a common body of law applied across the Kingdom. By the late medieval period upon the emergence of the writ system, English courts had established the foundations of a legal system where judicial decisions shape the law.

Global Expansion

The global spread of Common Law later occurred largely through the expansion of the British empire from the seventeenth to the nineteenth centuries. The British established colonies in the US in 1607, Canada in 1610, Australia in 1788, Singapore in 1819, and Hong Kong in 1841 among others. In these colonies, English legal principles (including precedent) were often introduced as the governing legal framework. Colonial courts applied English law either directly or with modifications suited to local conditions. Even after gaining independence, many former colonies retained core elements of the Common Law system, particularly the use of precedent.

To this day, many former British colonies continue to be influenced by legal developments in London.

Some laws legislated in the Parliament of Westminster were also directly applied in colonial

jurisdictions or later adopted into local legislation. For example, the Sale of Goods Act 1893, enacted in the United Kingdom, was received in several common law jurisdictions and influenced commercial legislation in places such as Singapore. In addition, appeals from colonial courts could historically be brought to the English-based Privy Council, which helped shape the development of common law principles across multiple jurisdictions – a system some smaller former colonies still rely on. Consequently, although the British Empire dissolved during the twentieth century, its legal legacy remains evident in numerous jurisdictions that continue to rely on Common Law reasoning.

The Future of The Common Law

The future of the Common law raises questions about whether jurisdictions sharing this system will become more integrated or increasingly distinct. On one hand, courts in Common Law jurisdictions frequently cite decisions from other jurisdictions as persuasive authority. This transnational dialogue allows judges to draw on reasoning developed elsewhere when confronting similar legal questions.

On the other hand, constitutional differences, political developments, domestic legislative

priorities, and cultural considerations can lead to divergence. For example, constitutionalism in the US has produced legal doctrines not found in other legal systems. Technological developments and globalised commerce where transactions can involve multiple Common Law jurisdictions may encourage further cooperation between such jurisdictions. However, the continuing importance of national constitutions, legislatures, and judicial independence suggests that complete convergence among these countries is unlikely.