Along with the written laws, our legal system has always had the "common law".

Introduction

Along with the written laws, our legal system has always had the “common law”. The common law is the law which has been created by the judges and which is not based on any statute. It has been developed on a case-by-case basis with previous cases acting as guides or precedents. Many of the general principles of the common law have existed in England for several hundred years. The common law is not frozen: It is always developing and changing.

How did we get the common law? Henry II who was the king of England from 1154 to 1189 established better and regular provision for the administration of justice during his reign. In the late 1700s, Upper Canada (now Ontario) passed a law adopting the common law of England. The other Provinces (except Quebec) also adopted the common law of England. Since then Canadian judges have developed the Canadian common law, though English cases have always been influential.

Background

In the early 12th century, much of England was divided into shires which had existed for centuries, and conducted much of their own government, under the control of a sheriff. In many ways, the county governed itself. The men of the county under the King and sheriff collected taxes, satisfied the king's demands and resolved disputes. As far as courts were concerned, the group of men of the shire under the sheriff, was the court. Each shire had its own folkways, traditional rules, customs and liberties. For example, if the men of the shire were unable to reach a decision, they might require an accused to test their guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other "test" of truth. If the wound healed within a certain period, he was set free as innocent, if not, execution usually followed. Therefore, law was not consistent and there were no institutional processes, which worked for uniformity throughout England.

King Henry II in 1164 issued a tool known as the ‘Constitutions of Clarendon’. According to its terms it was a record and recognition of part of the customs and liberties of his grandfather King Henry and others. The Constitutions stated procedure for trial by what we would, looking backwards, call a jury before the King's Chief Justice.

The reign of Henry II saw a great increase of the effectiveness of royal government, the power of the king, and the regularity of the operations of his government. By the end of his reign, patterns of regular procedure ...

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King Henry II in 1164 issued a tool known as the ‘Constitutions of Clarendon’. According to its terms it was a record and recognition of part of the customs and liberties of his grandfather King Henry and others. The Constitutions stated procedure for trial by what we would, looking backwards, call a jury before the King's Chief Justice.

The reign of Henry II saw a great increase of the effectiveness of royal government, the power of the king, and the regularity of the operations of his government. By the end of his reign, patterns of regular procedure had become well established.

Canadian Common law started in England, and until 1849, decisions and developments in English law were incorporated into Canadian Common law. Other legislative documents and decrees also have an effect, going as far back as 800 years. As time passes and new laws are enacted, though, this influence decreases. Some examples:

Magna Carta, 1215 (England)
Petition of Right, 1629 (England)
Bill of Rights, 1689 (England)
Act of Settlement, 1701 (England)

Characteristics

The grounds for deciding cases are found in precedents provided by past decisions.
Besides the system of precedents, other characteristics of common law are trial by and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings
Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction.
Changing conditions, however, give the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability

Fair Trial/equity guaranteed:

fair trial
same laws as everyone else
legal precedent

The form of reasoning used in common law is known as , which is complex reasoning to justify moral and ethical beliefs, or , which is a process of solving new problems based on the solutions of similar past problems, like precedents. Common law may be unwritten or written in , which are formal, written s or codes.
The type of practiced in common law courts is known as the , which relies on the skills of the different representing their party's positions

Henry can be credited with great parts in two things that are central to the development of English law:

Rule of Precedent—By treating like cases the same, judges of the King’s Courts created a fair and uniform system of judging offences.
Trial of Jury—They were not trial juries in the modern sense, since they did not provide a decision. Henry II created something called grand assizes and petty assizes that dealt with disputes over land. Grand assizes dealt with more general disputes, whereas petty assizes dealt with specific disputes over the land. The jury’s task was to tell the judge, under oath, about the land in question, as they knew about it.
Equity—The need for issues to be decided on their own unique characteristics instead of precedents grew. Therefore, people took their cases to courts that did not require special legal documents that took a long time to complete, called writs. The people took courts called ‘Courts of Equity’ which were concerned primarily with settling cases that couldn’t be dealt with the sometimes time-consuming and complicated system of common law.
Improved Procedures—With regularity and professionalism came the development of uniformity in law and the means of developing law to meet changing times and institutions; the means for a Common Law, common to all England, to be established.

Henry II regulated common law by creating a unified system of law "common" to the country through incorporating and improving local custom to the national level, ending local control and peculiarities, eliminating optional trials, and reinstating a system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its through evaluating common local knowledge, not necessarily through the presentation of , a distinguishing factor from today's civil and criminal court systems.

Today

In England, courts of law and were combined by acts called of 1873 and 1875, with equity being the primary characteristic in case of conflict. In the , like systems of law and equity survived well into the in most states. In the there is no separation between law and equity. still has separate courts of law and equity, and in many there are separate divisions for law and equity within one court.

that reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing and . This can easily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. is the process where a statute/law is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their definition. This is why even today American law schools teach the common law of crime as practiced in England in , since the colonies (and correspondingly, the states) turned from the common law as practiced in England only after that date.

Henry II did not replace the traditional methods, but he did try to supplement them to make justice more effective. His reign introduced the grand jury, still used in the United States to indict defendants, that is, to determine that they should be tried.

In many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have replaced much of common law, notably in the fields of commercial, administrative, and criminal law.

The common law constitutes the basis of the legal systems of: the (except ), the , the (except and ), (except ), , , , , , , and many other generally English-speaking countries.
Common law depends for its authority upon the recognition given by the courts to principles, customs, and rules of conduct previously existing among the people. It is now recorded in the law reports that include the decisions of the judges, together with the reasons they assigned for their decision.

Interesting Fact

The Oldest Statutes:

Statutes of Marlborough of 1267 is the oldest English statute in the Statute Book. It was retitled "The Distress Act, 1267" in 1948. There are more durable statutes enacted by earlier Kings and Henry II being assimilated into the Common Law.

Examples

http://www.nationmaster.com/kp/based+on+English+common+law (map)
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar%2FUtilities%2FJavaSearch&searchstring=precedent
http://www.globeandmail.com/servlet/Page/document/hubsv3/tgamHub?hub=Search&query=precedent