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History of the common law
Common law originally developed under the inquisitorial system in England from judicial decisions that were bad in tradition, custom, and precedent. Such forms of legal institutions and culture bear remblance to tho which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning ud in common law is known as casuistry or ca-bad reasoning. The common law, as applied in civil cas (as distinct from criminal cas), was devid as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caud by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practid in common law courts is known as the adversarial system; this is also a development of the common law.
Before the institutional stability impod on England by William the Conqueror in 1066, Engl
ish residents, like tho of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public asmblies that weighed conflicting claims in a ca and, if unable to reach a decision, might require an accud to test guilt or innocence by carrying a red-hot iron烧红的铁块 or snatching a stone from a cauldron of boiling water or some other "test" of veracity，(trial by ordeal)神明裁判. If the defendant's wound healed within a prescribed period自我介绍翻译规定期限, he was t free as innocent; if not, execution处决梨花劫 usually followed.
In 1154, Henry II became the first Plantagenet （金雀花王朝）king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not nec
essarily through the prentation of evidence，a distinguishing factor from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favour when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.
Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm veral centuries before Parliament acquired the power to make laws.
移动光纤As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they
might argue that an award of damages (at common law) was not sufficient redress for a trespasr occupying their land, and instead request that the trespasr be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional ca of Jarndyce and Jarndyce in Bleak Hou, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in ca of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. The United States federal courts parated law and equity until they were combined by the Federal Rules of Civil Procedure in 1937 - the same judges could hear either kind of ca, but a given ca could only pursue caus in law or in equity, which of cour led to all kinds of problems
选用育留when a given ca required both money damages and injunctive relief. Delaware still has parate courts of law and equity, and in many states there are parate divisions for law and equity within one court.
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Common law legal systems
The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Esntially, every country which has been colonid at some time by Britain us common law except tho that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follo
ws Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.
The main alternative to the common law system is the civil law system, which is ud in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries ud a Socialist law system.
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The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like ca law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercal Code in the early 1960's) and procedure (the Federal Rules of Evidence in the 1970's)).
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Scotland is often said to u the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the u of precedents is subject to the courts eking to discover the principle which justifies a law rather than to arch for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. The systems are referred to as mixed legal systems.
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The U.S. state of California has a system bad on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system bad on Spanish civil law with a system bad on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated
portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the ca Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was ttled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local ttlers to keep their civil law. However, the Dutch ttlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This w
as problematic as the patroon system of land holding, bad on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
