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The Evolution of Law: How Historical Events Shape Legal Principles and Practices

May 25, 2023 by Avery Devereaux

The fascinating journey of law’s evolution is intricately intertwined with historical events that have left an indelible mark on legal principles and practices. Throughout the ages, significant milestones have shaped legal systems, molding them into what we know today. Let’s embark on a captivating exploration of how historical events have shaped the course of law, guiding it through the currents of change.

Ancient Legal Systems: The Cradle of Jurisprudence

In the depths of history, ancient civilizations grappled with the intricacies of governance, property rights, commerce, and conflict resolution. 

These challenges birthed the first legal systems, with codes and institutions forged to navigate the complexities of society. Mesopotamia, Egypt, Greece, and Rome each contributed unique legal frameworks, reflecting the distinct contexts in which they emerged.

Codification of Laws: Harnessing Order from Chaos

The momentous act of codifying laws played a pivotal role in shaping legal principles. One eminent exemplar is the legendary Code of Hammurabi, hailing from ancient Babylon. 

Formulated around 1754 BCE, this code standardized laws and punishments, capturing the essence of its era’s social and economic fabric. Echoing this approach, the Justinian Code, the Napoleonic Code, and the English common law system wove a rich tapestry of legal norms, sculpting the contours of justice.

Colonialism and Legal Transplants: Fusing Cultures and Jurisdictions

The age of colonialism unleashed a transformative force upon legal systems worldwide. European powers transplanted their legal frameworks onto colonized regions, mingling local customs with foreign laws. 

In the crucible of cultural convergence, hybrid legal systems emerged, bearing the imprints of both colonizers and indigenous traditions. This historical fusion shaped the legal landscape of numerous post-colonial nations, defining their legal identities.

Revolution and Constitutionalism: The Birth of New Orders

Revolutionary fervor reverberated through the annals of history, shattering established notions of authority and power. The American Revolution blazed a trail, birthing the United States Constitution—an enduring beacon of governance and individual rights. 

Similarly, the French Revolution sparked the Declaration of the Rights of Man and Citizen, an influential document whose ripples extended worldwide, redefining concepts of human rights and constitutional governance.

World Wars and International Law: Seeking Harmony in Chaos

The harrowing ordeals of World Wars I and II exposed humanity’s dire need for international legal frameworks. Faced with the horrors of war, global powers banded together to form organizations like the League of Nations and later the United Nations. 

These entities became architects of international law, advocating peace, human rights, and cooperation among nations. Their efforts continue to shape the legal tapestry of our interconnected world.

Civil Rights Movements: Forging Equality in the Crucible of Struggle

The resounding echoes of civil rights movements reverberate through history, etching lasting changes in legal systems. The African-American civil rights movement, among others, kindled legal reforms and ignited the recognition of equal rights for marginalized communities. 

Landmark legal cases and legislative breakthroughs emerged, propelling the evolution of discrimination law, voting rights, and the protection of equal treatment under the law.

Technological Advances: Navigating Uncharted Digital Waters

The rapid march of technology, particularly in the digital age, has posed new challenges and necessitated legal adaptations. The advent of the internet, e-commerce, and social media thrust legal systems into uncharted territory. 

In response, lawmakers crafted new legal frameworks, addressing cybersecurity concerns, safeguarding data privacy, and fortifying intellectual property rights in the digital realm.

Historical events have been instrumental in shaping legal systems. Early civilizations faced societal challenges that necessitated the creation of legal codes and institutions. The circumstances surrounding governance, property rights, commerce, and conflict resolution prompted the formation of legal frameworks that catered to specific needs. As societies evolved and encountered new challenges, historical events served as catalysts for legal transformations, enabling legal systems to adapt and respond to changing circumstances.

Here are some FAQs that may help you understand the topic in depth.

What Role Did Codification of Laws Play in Shaping Legal Principles?

Codification of laws played a crucial role in shaping legal principles. Historical examples like the Code of Hammurabi, the Justinian Code, the Napoleonic Code, and the English common law system standardized legal norms and punishments, reflecting the social and economic conditions of their respective eras. 

By establishing comprehensive legal codes, these historical milestones brought order and coherence to legal systems, serving as reference points for subsequent legal developments and shaping the foundational principles of justice and equity.

How Did Colonialism Impact the Evolution of Legal Systems?

Colonialism had a profound impact on the development of legal systems worldwide. European powers imposed their legal frameworks on colonized regions, resulting in the transplantation of legal principles and practices. 

This process blended existing local customs with imported legal systems, leading to the emergence of hybrid legal systems in many post-colonial countries. The fusion of indigenous traditions and foreign laws shaped the legal landscape, influencing concepts of property, governance, and human rights in these regions.

What Impact Did Revolutions Have on the Establishment of Constitutionalism?

Revolutions sparked transformative changes in legal systems, particularly regarding the establishment of constitutionalism. The American Revolution, for instance, gave birth to the United States Constitution, a groundbreaking document that defined the structure of government and protected individual rights. 

Similarly, the French Revolution heralded the Declaration of the Rights of Man and Citizen, which influenced the development of constitutional governance and human rights globally. Revolutions challenged traditional notions of authority and power, ushering in new legal frameworks centered on democratic principles and the protection of individual liberties.

How Did World Wars I and II Shape International Law?

The devastating impact of World Wars I and II highlighted the need for international legal frameworks. The League of Nations, established after World War I, and the United Nations, formed after World War II, sought to promote peace, cooperation, and respect for human rights among nations. These organizations played pivotal roles in shaping international law, addressing issues of war, conflict resolution, and human rights abuses. Historical events such as these propelled the development of international legal principles, treaties, and institutions that continue to shape global relations today.

Embracing Change: The Ever-Evolving Legal Tapestry

Law’s evolution is a dynamic tapestry woven from the threads of historical events and the diverse fabrics of society. It adapts and transforms, guided by the needs and aspirations of humanity. As we reflect on its captivating journey, we bear witness to a continuum of change—an ever-evolving quest for justice, fairness, and harmony in an ever-changing world. Click here to learn more !

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• A Short History of the Common Law

by Michael Parrington, October 2012

Why is its history so important to an understanding of the common law?

Introduction

History helps to understand how the platform for common law was created, why the procedure helped produce and gradually develop the body of law deemed the common law, and how the common law professionals helped administer, develop, and maintain law and procedure, and why it is still relevant today.

The common law was a historically deemed term that meant a law common to the people of England, controlled by the Royal courts.[1] However, this essay also considers the development, through history, of the common law to another understanding as the body of law created by judges, and in that sense the law not created by equity or statute.[2]

Without a power platform for upholding and legitimising the law making decisions of the judges there would have been little chance for the common law to be created or maintained. Development of a hierarchical and centralized system of the courts, originally empowered by the kings and later the parliament, was the fundamental basis from which the judge made common law was enabled and maintained. Today this hierarchical platform is still in place and understanding how it continues to legitimise legal decisions is important.

From this centralised court system developed a procedural method of deciding legal outcomes in a consistent but continually restated way through the courts and their decisions. This was based on a culture and method of adversarial argumentation between the parties in disagreement, originating through the writ system and developing into the current system that is known as precedent.

This detailed procedural system requirement had the need for legal professionals that were skilled in understanding, arguing and applying the law on behalf of clients in the various court settings. Their association and internal scholastic approach would ensure legal procedural consistency and development of record keeping, which are critical to the common law courts and its procedures.

Legal Platform

The commonly accepted historical understanding is that the basis for the foundation of the common law dates back to the Battle of Hastings in 1066, and the beginning of the Norman rule of England by William I. Before this time there was a system of uncentralised Anglo-Saxon law in the entity known as England, where as well as the Court of the King, witenagamot, each county would separately rule in disputes, in their own courts, according to their local customary law, through the Shire and Hundred Courts.[3] This community centric law was seen as well accepted by the communities that it served and importantly provided the basis for control of the people.[4]

William I required control of the whole of the kingdom of England to retain his power and income, and as such allowed the inherited system of local customary laws to remain. However, he ensured that his representatives, the sheriff’s, policed Shires.[5] The Normans were no strangers to administration of lands as they were already an established system of control over the realm of the Franks, and William I would impose a modification to the traditionally developed system of feudalism to take administrative control adding the locally functioning feudal Baronial and Manorial courts.[6] Feudalism was by its nature a hierarchical system of power and social control based on land tenure, and mutual benefit through income and military support passed upwards, and the Kings protection downwards.[7] The English feudal system had the King at the top of the tree with control over the entire Kingdom of England, nobles who sat next in line as tenant-and-chief were wealth land-owners by decree and plead of allegiance to the King, and below this were various tenants of the land.[8] This hierarchical system has endured and ensured power and central control of the common law.

William I set up the Curia Regis, or King’s Court, to stand side by side with the feudal courts, ecclesiastic and custom law courts, and would travel with the king within the realm, to hear petitions of his subjects, before he would rule. During the twelfth and thirteenth centuries, greater numbers of individuals would seek the kings justice due to dissatisfaction with the local laws, which they saw as unfair and unjust.[9] The king began to leave decisions that could be dealt with under existing laws to the autonomy of the curia regis, and to enable his obligations to be met the king began to appoint ‘justiciars’, or judges, whom were official representatives of the King, knowledgeable about the law.[10]

Over time a split of the curia regis occurred, one part became a permanent body of justices of the Curia Regis, formed to hear the ‘common pleas’, and became known as the Bench of Common Pleas. This Court would no longer travel with the King and would sit in a central location at Westminster, as ratified by the Magna Carta.[11] The other part was the ‘Justices in Eyre’, effectively as a sub-branch of the curia regis. These itinerant judges would travel to various regions of the country, known as ‘circuits’, to resolve disputes on behalf of the king and would apply law consistently. The idea of this was to replace the local courts with authoritative courts of the king that were accessible by the people, and it is notable that the decisions, not reasoning, of these courts were recorded.[12] As such the body of law created by these judges formed much of the basis of the common law.

Two other courts, formed from the curia regis, that were important for the basis of the common law being developed were the Court of Exchequer, which was primarily set up of advisors to hear disputes of a financial nature, and secondly the coram rege, or Kings Bench who were kings direct advisors, responsible for business affecting the king.[13]

Thus the three common law courts had developed, all empowered by the king, and all operated by professional judges who were knowledgeable in law and able to dispense with the same (common) law across the realm. This centralisation of the courts enabled a small group of legal individuals to flourish, developing a legal procedure that was repeatable and controllable, empowered initially by the king. It is true that there were numerous other courts that were developed for other areas of law, such as equity, admiralty and ecclesiastical, and that these other courts had to find a functional balance with the common law and vice versa, and also integrate statutes from the king and later parliament, but the three common law courts, and revisions of like over the next four centuries, ensured the platform for the development of the common law.

Roll forward to the late seventeenth century as the next major development in the platform for the common law is seen when parliament took over from the monarchs as being the legitimate power source of law and installing the crown by consent, following the Glorious Revolution which overthrew Charles II and installed William of Orange to the throne.[14] This is to state that the Parliament, through the power installed in it by the people, could now enact laws, normally in the form of statutes or acts, which were by royal decree so as to maintain the common law platform.[15] The Parliament was first called in 1265 by Simon de Montfort as an advisory body to the king, where the House of Lords was made up of the noble hereditary land holders, and popular representatives from the counties and boroughs in the House of Commons.[16] Even though the actual make up and selection criteria of the representatives may have changed, especially in the House of Lords, this is still the same basic two-chamber model of government that can be seen in Britain and Australia today.

From the eighteenth century the parliament modified the structure of the courts to remove some of the excessive divisions that had occurred since the thirteenth century. In England the Court of Common Pleas, Exchequer, King’s Bench, Chancery and Admiralty were removed under the Judicature Act 1873, and were replaced by two courts, The High Court and the Court of Appeal.[17] These new courts were divided into five divisions representing the old courts that had been replaced, notably returning the courts to a clearly hierarchical system where the common law jurisdictions could be centrally administered, with the House of Lords maintaining its importance as the highest court of appeal in the land.

Australia inherited the English law in 1787 through Governor Phillip’s commission, and set up a court system based on the English system in New South Wales and what became Tasmania.[18] The other states followed a similar path in their formation, as they inherited the structure and body of English law at the time of colonisation.[19] Over the decades that followed versions of the Judicature Acts in England were also enacted in Australia giving each state a similar structure to that in England invested in a Supreme Court. In Australia it would be remiss not to mention the additional level of hierarchy added through the Australia Constitution and the judicial power being vested in the federal High Court and federal courts,[20] with final appellate review vested in the High Court. The last relevant point here is that until the Privy Council (Appeals from the High Court) Act 1975 the relevance of the right to appeal to the English Privy Council meant that Australian law was inextricably linked to English law.

Thus the hierarchical structure and platform for the centralized legitimization, development and maintenance of the common law, with its parliament, courts, decree by crown and professional judiciary that is still relevant today had been set in place.

Legal procedure

Churchill is believed to have said to the Queen ‘always remember the further back you can look, the further forward you can see’,[21] and the relevance of historical decisions in the English common law system can not be denied when examples of the 1352 Statute of Treasons is still relevant in cases tried in the twentieth century.[22] Through the procedure that began in the thirteenth century the body of the legal decisions that are the common law was built, and it is those procedures that still govern the methods by which the system functions and grows.

The writ system from the twelfth century was not a new system developed by the Normans or the common law courts,[23] but it was a system that complimented the method of formalizing the delivery of justice in the hierarchical centrally controlled system. The person seeking a legal decision to be reached over a dispute, called the plaintiff, would apply to the kings representative in the Chancery and purchase a writ. From this the requirement to bring the person whom the legal decision was to be made against, called the defendant, would be organized by the kings representative in the Shire, the sheriff.[24]

The writs were very specific in regards to the action that was to be brought, including details such as time limit, modes of proof, enforcement etc., as such many new writs were being constantly issued.[25] The writs greatly expanded the ability for a plaintiff to bring a case against a defendant, and began to build sequentially as new courses of action were sought, as it was believed that ‘if some wrong were perpetrated, then a new writ might be invented to meet it’.[26] One of the most common writs was that of trespass, of which there were numerous categories, and were applied very mechanically and required a show of directness. For example if a woman had lost her hand after being treated carelessly by direct contact from a doctor then her cause of action of trespass might be upheld,[27] however, for example, the doctor may not be guilty of trespass if she had lost her arm where a friend had administered the treatment upon the doctors advice, as the action by the doctor would not have been direct.

Relevant to the hierarchy of the courts, was the right of appeal that was formed initially through writ procedures. This was not necessarily as it is understood today as the courts of the time were still highly centralized, however, a person had the right of appeal if they believed the court had been mistaken in its judgment through the writ of error. Additionally, appealing to a higher court, such as the Kings Bench, was available through the writ of certiorari.[28]

Perhaps the most important point borne from the early instances of the kings courts and the writ system in the common law was the birth of stare decisis, or that each case should be treated alike, and the birth of the doctrine precedent. Precedent is contained in judicial decisions on an ever-increasing volume of individual, but sequentially decided, legal cases. Precedent also relies on the hierarchical nature of the courts where a reason for a decision in a court higher in the hierarchy is binding, otherwise known as the ratio decidendi.[29] Other parts of the case that are not specifically relevant to the decision and the ruling can help guide future cases are said to be obiter dicta. It is said that the ratio decidendi of a past case may not be apparent until the decision in a future case, so deciding between the ratio decidendi and obiter dicta can be difficult.[30] The procedure followed by the judges in interpreting and creating the precedent, and the barristers in the typical adversarial arguing method, is for the barristers to propose alternative arguments on the current facts of the case in past precedent, and the judge to use analogical and deductive reasoning to discover the relevance of past precedents to any current case. This procedure of discovering the rule of law in a case has created the main body of the common law, and has led to the development of many legal principles.[31]

As the legal procedural system moved past the medieval period and into the eighteenth century this procedural development became a more significant. However, it is still in the procedure of the writs that one starts to see the ability for the common law to adapt to the requirements of society, and also for society to adapt to the common law. In 1258 the nobles, concerned about the proliferation of the writs, pressured the king to stop the flow of new writs, and in the Provisions of Oxford new writs were prevented from issuing.[32] An interesting legacy developed from this as the judges began to allow legal fictions, or untrue facts, to enable new types of cases to be brought before alternative courts, either of common law or otherwise. It is argued that these legal fictions allowed a large body of law to be created outside the common law courts that were subsequently appropriated by the common law courts.[33]

Moreover, a form of legal fiction has been important and forms part of the culture of legal argumentation relevant in order to curtail strict precedent that might be out of step with developing societal norms.[34] It is primarily where a story is proposed as socially and legally acceptable, although alternative, ‘fiction’, to the story told by precedent in order to create a new precedent that is in agreement with existing precedent, but always seemingly based on the facts of the current case.

The development of product liability over the centuries is perhaps a good example of how the legal procedure in the common law courts develops new posited law, with the use of legal reasoning, including fictions. A famously relevant case is often used to show how the common law developed the basis of product liability. In 1932 in Donoghue v Stevenson[35] the plaintiff brought a case against the manufacturer (defendant) of a ginger beer, which had been purchased by a friend for the plaintiff from a local shop. Upon consuming the drink the plaintiff noticed remnants of a snail in the bottle and subsequently became quite ill. The Court found that the manufacturer was liable in negligence even though there was no direct contract between the manufacturer and plaintiff, or even the shop and the plaintiff. This case was decided through the legal procedures such as using past precedent, barrister argumentation, and judges through their legal reasoning. In this case Lord Aitken famously developed the ‘neighbor principle,’[36] suggesting that who in life is my neighbor should also be precisely who in law is my neighbor, and as such any acts or omissions that injure my neighbor are my responsibility. Thereby creating a believable fiction to enable the court to reach a rule that modified and agreed with prior precedent. The ratio decidendi reached in the case being that a manufacturer is liable to a duty of care to the ultimate consumer, where that consumer has no prior chance of product inspection.[37]

This was not as simple as deciding the product liability rule only on the facts of the Donoghue case, as there had been developments since 1837 in prior precedent that gradually removed the directness of contract and liability between the plaintiff and defendant as being the only course of legal action, and opening up indirect actions in negligence, where each case built upon sequential use of the prior precedents. In 1837 in Langridge v Levy[38] the Court decided there was a duty of care on the plaintiff because of the “consequences of fraud” rather than a direct liability to the plaintiff.[39] In 1842 and Winterbottom v Wright[40] the plaintiff relied on the Langridge case, however the judge denied this finding no directness of contract between the parties, and noted concerns that allowing the alternative action might open the legal floodgates. In 1869 and George v Skirvington[41] the judge finds no liability in contract, but creates a linkage between ‘fraud’ and ‘negligence’ seeing the two as similar in the context. Lastly in 1883 and Heaven v Pender[42] the judge found for the plaintiff in negligence, noting that there is a duty from one party to another even where there is no direct contract, and that a duty of care must be given by a supplier to ensure goods that are used avoid creating danger to another.

Today the process of the judicial decision making with its legal reasoning, barristers with their adversarial legal arguments, and the hierarchy of courts driving commonality of legal precedent is key in the development and maintenance of the common law.

Legal professionalism and the protection of the common law

The essay discovered earlier that professional judges developed out of the requirements of the centralisation of the court systems. It should be noted that this professionalism of judges was the requirement of the kings common law courts and not those of the remaining lower courts such as the Local, Shire, Baronial, Manorial that were governed by local or untrained authorities, or the developing County Courts that would replace them with its justices of the peace to sit in judgment.[43] The trained judges were loyal to the king and were well-educated scholars generally from a religious background.

With the highly technical procedure, required initially by the writ system, and additionally because of the centralization of the Court of the Common Pleas to Westminster, began the development of, and the requirement for, the barrister. The barrister, grew to become a specialist legal professional from a generalist type attorney,[44] skilled in the law and its procedures including the argumentation in the courts, and were located in London. This group of professionals also started to appear in the twelfth century, as a direct financial consequence to clients wanting to have their cases heard in the Court of the Common Pleas, but not wanting to personally travel to London or wait for the inconsistent visits of the itinerate justices to travel with the Kings Bench to a local circuit.[45] In this way the barrister became the clients legal representative in court and would argue the merits of the case, in front of a judge.

Around this group of legal professionals grew a voluntary association that would develop the group of legal professionals, from students to barristers, where the best barristers would be selected to join the judges on the bench.[46] These associations were known as the Inns of Court of which there were four related to the common law courts; Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn. A prospective student was from an exclusive background, generally a son of a ‘gentry’ or ‘bourgeoisie’ and is said to have been able to choose between any of the Inns.[47] The Inns provided the training ground for the specialist legal professionals who grew through the mutually exclusive requirement of the centralized court and procedural system of the common law, and up until the nineteenth century it was still rare that a student would pass through a formal university education.[48] A student of the Inns would follow a set path of study and legal assistance to a barrister, before being ready to be accepted to the bar himself, and possibly eventually becoming a judge. Today the English Inns of Court still exist and these Inns retain jurisdiction over the behavior of its legal professionals.

Another important legal professional that developed during fifteenth century was that of the solicitor. This grew out of the requirements for more generalist advice to be locally available to legal clients, and these solicitors would, as they do today, offer advice prior to the requirement for a barrister and assist barristers when required.[49]

One of the important aspects of the common law was that for many years the record keeping of the ratio decidendi were not routinely recorded. Even so it was said by Glanville that even though the laws were not recorded they were still laws.[50] As the ratio decidendi was omitted by the courts, and stare decisis being required, it became necessary for the legal professionals to maintain private records, or log books, which retained the information of the judges decisions. A number of these private records are still seen as so instructive that they have been used as reference in cases. For example those of Glanville and Bracton advising on writ procedure in the twelfth and thirteenth century, and those of Sir Edward Coke, and Sir William Blackstone who’s commentaries on the laws of England are very detailed. From 1865, following from a supposedly self-interest of the bar, the system of the courts reporting the reasons for their decisions became the standard.[51] The reporting process was through officially appointed reporters who would complete the reports subject to the approval and edit of the residing judge.[52] This enabled the legal profession to access significant data from which to build arguments from precedent and to and rule in future cases.

This system of legal professionalism, produced from the historical development of the common law, is still operational in Australia today, where barristers are accepted to the bar and reside in ‘professional chambers’. The barrister offers his or her specialist services to clients, normally through referral from the client’s solicitor. The barristers continue to argue matters in front of judges on the behalf of their clients and are assisted by their readers and solicitors, whether the client appears at the court or otherwise.

Through history this group of legal professionals is said, perhaps through its conservatism, to have protected the common law system from being replaced by other systems of law such as a civil code, statutes or revolutions.[53] Others have suggested that it is more a case that these groups and the crown have protected the institutions so dearly as a requirement for financial prosperity.[54] Either way there can be no argument that the common law has sustained longer than any other western system of law, and that this group of professionals has been, and remain, imperative to its function.

History is of fundamental importance to the understanding of the common law, as it is a body of law that has developed over time, and is still highly relevant today. This essay has shown three mutually exclusive requirements of the common law that have developed to become its pillars through its history, and have in turn ensured the continuing relevance of the common law over time. These three pillars of platform, procedure and professionals are akin to three legs on a chair, if any were to be removed then the whole system would be unstable. This is not to suggest that there are not other important historically borne aspects of the common law, such as the jury and constitutional freedoms, but it is to suggest that those aspects fall within the necessities and functionality of the three pillars.

It has been shown that critical to the development of the common law was the creation of the centralized and hierarchical courts which created a legitimate platform to make, adjudicate and uphold laws. From this platform how a procedure developed to adjudicate on those laws and also how to ensure that those laws remained in balance with society through the ages, and how the strict procedural nature of those laws and the centralization of the courts developed a close knit community of legal professionals who assisted in developing and protecting the common law institution.

[1] R C van Caenegem, Judges, Legislators and Professors: Chapters in European Legal History (Cambridge University Press, 1987) 44 (‘Judges, Legislators and Professors’).

[3] C Cooke, R Creyke, R Geddes, D Hamer with T Taylor, Laying Down the Law (8th edition, LexisNexis, 2011) 546 (‘Laying Down the Law’).

[4] P Parkinson, Tradition and Change in Australian Law (4th edition, Lawbook Company, 2008) 84 (‘Tradition and Change’), 66.

[6] Laying Down the Law, above n 3, 16.

[7] R C van Caenegem, The Birth of the English Common Law (2nd ed, Cambridge University Press, 1992) 5-7 (‘Birth of the English Common Law’).

[8] Laying Down the Law, above n 3, 16.

[9] It is perhaps important to note that during the period up seventeenth/eighteenth century the old local Shire and Hundred courts became less important, and the feudal courts declined into insignificance. These were replaced by courts of justices of the peace, which were supervised by the coram rege.

[10] Laying Down the Law, above n 3, 18.

[11] Birth of the English Common Law, above n 7, 22.

[13] Ibid 19, 21.

[14] Laying down the law, above n 3, 26-27.

[15] Ibid 28-29.

[16] Ibid 22-23.

[17] Ibid 30.

[18] Tradition and Change, above n 4, 3.

[19] Ibid 132-133.

[20] Australian Constitution s 71.

[21] See B Sully, ‘The Common Law: whither or wither?’ (Occasional address to Australian lawyers alliance, ACT branch conference, 24th June 2011).

[22] Birth of the English Common Law, above n 7, 8.

[23] Ibid 30-31.

[24] Ibid 29.

[25] Ibid 5-7.

[26] Ibid 54, citing Bracton, fol. 413b.

[27] see A, Ounapuu, ‘Abolition or Reform: The Future for Directness as a Requirement of Trespass in Australia’ (2008) 34(1) Monash University Law Review 103.

[28] Judges, Legislators and Professors, above n 1, 5.

[29] M Kirby, ‘Precedent Law: Practice and Trends in Australia’ (2007) 28 Australian Bar Review 243, 245 (‘Precedent Law: Practice and Trends’), 245.

[30] J Carvan, Understanding the Australian legal system (6th edition, Thomson Reuters, 2010).

[31] The doctrine of precedent as we know it today was a later development in law, since 1865, but the general founding principles date back to the begging of the common law. The development period of precedent were: (a) circa 1290-1535, the Year Book Period, (b) 1535-1765, the period of Plowden and Coke, (c) 1765-1865, the period of the Authorised reports, (d) 1865 onwards, the Modern period, The History of Judicial Precedent (1930), Lewis, T. Ellis.

[32] Laying Down the Law, above n 3, 19.

[33] E P Stringham and T J Zywicki, ‘Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England’ (2011) 147 Public Choice 497-524.

[34] Laying down the law, above n 3, 118-119.

[35] [1932] AC 562.

[36] Ibid 580.

[37] Ibid 599.

[38] (1837) 2 M & W 519; 150 ER 863.

[39] In this case the manufacturer had warranted that a gun sold to the father was in good working order, which was the bases for the court to rule that a fraud had occurred.

[40] (1842) 10 M & W 109; 152 ER 402.

[41] (1869) LR 5 Ex 1.

[42] (1883) 11 QBD 503.

[43] Judges, Legislators and Professors, above n 1, 133-134.

[44] Laying Down the Law, above n 3, 31.

[45] Ibid 30-31.

[46] Judges, Legislators and Professors, above n 1, 48, 60.

[47] Ibid 48.

[48] Ibid 60-61.

[49] Laying down the law, above n 3, 31.

[50] Birth of the English Common Law, above n 7, 2.

[51] J P Dawson, The Oracles of the Law (University of Michigan Law School, Ann Arbor, 1968) 80, 81-83.

[53] Judges, Legislators and Professors, above n 1, 6-7.

[54] E P Stringham and T J Zywicki, ‘Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England’ (2011) 147 Public Choice 497-524.

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History of Law Essay

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Various definitions have been assigned to the vast concept that is law. To some people, law is an unqualified human good without which the society would be in disarray.

To others, law is a sham and is used as an ideological tool to serve elites. Perhaps both of these approaches are valid depending on the perspective that we take. Nevertheless, there must be one approach of the two that is weightier based on the history of law than the other. This discussion seeks to find which of the two makes more sense based on real historical evidence.

Law being vast in nature may not have a single definition. However, we may agree that the concept of law was first established with the main aim of bringing order to society by defining what is considered wrong and right based on societal norms.

Thompson who has been referred as the father of the history pioneered an argument that law is an unqualified human good arguing that the society would not know any good without law. This argument which first put across a couple of decades back has been the subject of discussion among many scholars.

Thompson was historian who fought against oppression of a class people which was considered inferior. The working class during the 18 th century was such an oppressed lot and this was because the laws in existence then seemed to favour those who were aristocrats of the society.

Although Thompson at first appeared as though he was lodging a criticism for legal parameters, he did make his stand on several occasions arguing that the law protected the society from the government which was likely to use the same laws to manipulate the people. He argued that the laws have ensured that the public has rights which if violated by the government could provide a redress to the people.

The government is limited in its actions since the law empowers the people and therefore the government has to be extremely cautious in its actions.

On the other hand, the law has been viewed as a sham and an ideological tool that serves only the elites in the society. This approach is equally true and especially in countries where the leaders are dictatorial and authoritarian. A case in point is Indonesia where leaders have come up with stringent laws and policies with the aim of exercising unmitigated, uncontrolled and unquestionable powers on the people.

The Middle East is yet another example where leaders have used the rule of law as their tool to remain in power while ruling people in a controlling manner to the detriment of the society. The uprising that has been witnessed in Tunisia, Egypt, Libya and now Syria is a reaction to leaders who have used the rule of law for their own personal gain and at the expense of the majority of the people in the society.

It is only governments that use the law as a tool of controlling their own population to the advantage of the leaders but also international organisations have also used the law to manipulate individual countries.

For instance, third world countries may be in need of donor funding from western countries. The western may impose some policies which the recipient of the funds must comply with even if they are deprived of some of their rights. Failure to comply will lead to the withdrawal of the much needed funding for development in third world countries.

Looking at the two approaches, the approach by Thompson that the law is an unqualified human good seems to carry more weight. This is because everybody is under the law. The requirement is that every person; the society and the government, the leaders and individuals must obey and adhere to the laid down rules.

Usually, whenever the government appears to use the laws to manipulate the public, it is normally a violation of the same laws. Therefore, if every institution in the society including the government was to be disciplined, then the ultimate goals of ensuring that the law is unqualified human good would stand unshaken.

Strengthening the judiciary which is expected to keep both the society and the government in check and ensures that no violation of the laid down rules goes unpunished should be the ultimate goal of every society.

While the same courts under which the judiciary falls have some laid down rules which govern their operations, to a great extent, these courts and the judges who preside the courts have inherent power known as discretion to depart from some of the already laid down rules and arrive at a different decision to ensure that the justice is manifested.

Law is indeed a tool that every society needs to maintain order, sanity and consistency. Without law, people would not know what is right or wrong and would therefore do as they wish wished. This would see a society in chaos and disarray and this would hamper greatly the process of development

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common law , the body of customary law , based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages . From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law , now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law , it comprises three major (and other minor) legal systems, those of England and Wales , Scotland , and Northern Ireland . Historically, the common-law system in England (applied to Wales since 1536) has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. Beginning in 1973 the legal systems in the United Kingdom experienced integration into the system of European Union (EU) law, which had direct effects upon the domestic law of its constituent states—the majority of which had domestic systems that were influenced by the civil-law tradition and that cultivated a more purposive technique of legislative interpretation than was customary in the English common law. However, the United Kingdom exited the EU in 2020. The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United Kingdom since the passage by Parliament of the Human Rights Act 1998 .

The origin of the common law

The English common law originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London . Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons , especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.

The Norman Conquest did not bring an immediate end to Anglo-Saxon law , but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property . The requirement that, in cases of sudden death, the local community should identify the body as English (“presentment of Englishry”)—and, therefore, of little account—or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements of the Anglo-Saxon system that survived were the jury , ordeals ( trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; see below The development of a centralized judiciary ). Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice . Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction , especially since appeals from church courts, before the Reformation , could be taken to Rome.

The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.

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The Oxford International Encyclopedia of Legal History  

Edited by: stanley n. katz.

The Oxford International Encyclopedia of Legal History , edited by Stanley N. Katz, is the first encyclopedia of law to provide both historical and contemporary comparisons of the world legal systems. A truly international and interdisciplinary reference work, the Oxford International Encyclopedia of Legal History covers legal history from ancient to modern times. Approximately 1,000 articles explore the traditions of Ancient Greek Law, Ancient Roman Law, Medieval Roman Law, Chinese Law, English Common Law, Islamic Law, United States Law, and the laws of such other regions as Africa, Latin America, and South Asia. Major categories of law explained in detail include private law (contract, tort, civil procedure), public law (statutory, criminal, etc.), and higher or constitutional law.

Using statutes and administrative rulings, judicial decisions, and descriptions of legislatures, agencies, and courts, the Oxford International Encyclopedia of Legal History offers a clear background on geographically distinctive laws, their origins, and their consequences throughout world history.

Bibliographic Information

Affiliations are at time of print publication..

Stanley N. Katz is a Professor of Public and International Affairs at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is President Emeritus of the American Council of Learned Societies, the author of Colonial America, Essays in Politics and Social Development and Constitutionalism and Democracy: Transitions in the Contemporary World , and editor of The History of the Supreme Court of the United States: The Birth of the Modern Constitution, 1941-1953 .

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Home — Essay Samples — Life — Financial Fair Play — The History of Law and Lawyers

The History of Law and Lawyers

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Published: Apr 11, 2019

Words: 1578 | Pages: 3 | 8 min read

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History of the law, the laws of ancient greeksdraco, college training, bar examinations, working for a firm, salaries for lawyers.

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The Rule of Law and Why It Matters

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About This Lesson

John Carey, professor of government at Dartmouth University, believes that next to free and fair elections, one of the most important defining characteristics of democracy is the rule of law. While the citizens of a democracy choose their leaders and representatives through elections, the rule of law defines the relationship between representatives and citizens between elections.

So what is the rule of law? Most simply put, it means that laws apply equally to everyone in a democracy, even the most powerful government officials and elected leaders. It also means that laws are created through a predetermined, open, and transparent process, not by the whim of the most powerful members of society.

This lesson provides students with the opportunity to both learn what it means to respect the rule of law and consider its importance in a democracy. Students will listen to John Carey, professor of government at Dartmouth University, tell a story from his travels to Chile that illustrates how a country's respect for the rule of law can be apparent even in the most seemingly mundane circumstances. Then they will research current events from around the world that illustrate the relationship between the rule of law and healthy democracy.

Essential Questions

• What does it mean to respect the rule of law?
• What impact does the rule of law have on democracy?

What’s Included

This lesson is designed to fit into one 50-minute class period and includes:

3 activities 1 audio

Save this resource for easy access later.

Lesson plan.

Define Rule of Law

Tell the class you’ll be creating a working definition for rule of law , a concept that dates back to antiquity. Begin by asking students to share any ideas and information they have about the rule of law. Then, share these two quotations from the Magna Carta and Common Sense : The rule of law was first codified in Western European government in the Magna Carta in 1215, when English nobles demanded that King John’s powers to arbitrarily arrest or imprison them be curtailed. The charter states that even the King had to follow the law:

No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will he proceed against or prosecute him, except by the lawful judgment of his peers and the Law of the Land. 

In his 1776 pamphlet Common Sense , American founding father Thomas Paine wrote that the law itself ought to be more important and more powerful than any individual, including a king:

But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. . . in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

Discuss together: What do the ideas in these quotations add to your working definition of the rule of law?

Optionally, share the four core principles of the rule of law, as defined by the World Justice Project, which measures respect for rule of law in countries around the world: 1

The government and its officials and agents as well as individuals and private entities are accountable under the law. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

• 1 “What is the Rule of Law?,” World Justice Project website, accessed May 12, 2017.

Listen to the Interview

Play the audio clip John Carey on the Rule of Law . To help guide students' listening, choose questions from the list below and share them with students before playing the audio. Students can respond to the questions as they listen.

After playing the audio, give students a few minutes to complete any answers they did not finish while listening. Then lead a class discussion based on these questions:

How does Carey define the rule of law? Which ideas from the Magna Carta, Common Sense, and the World Justice Project does he emphasize? Summarize the story Carey tells about his travel to Chile. Why does he use that story to describe the rule of law? How is the rule of law related to the protection of human rights? How might an absence of rule of law lead to violations of human rights? Why does Carey suggest that it is difficult to identify when the rule of law is being violated at the moment it is happening? What does he say makes it hard to recognize when democracy is being eroded? Carey says that protecting democracy when it is under threat requires widespread recognition of when a line has been crossed. What does widespread recognition look like? Why is it difficult to build a critical mass of people who stand up for democracy? What factors might encourage people to look the other way?

Related Materials

• Audio John Carey on the Rule of Law

Research Rule of Law around the World

Students can better understand the importance of the rule of law in a democracy by investigating how it is valued and challenged in different countries around the world. They might start their investigation by looking at the World Justice Project's Rule of Law Index . (The option to “View Tour” on the site is an excellent place to begin.) Examining the criteria WJP uses to rank countries and the outcomes of their evaluation can lead students to a deeper understanding of the rule of law as a principle and as it is experienced in everyday life.  

Students can also research recent news stories online. Recent reports about South Korea and Turkey are good entry points for understanding how the rule of law is at work, and at stake, in choices that leaders and citizens are making around the world.

• Link World Justice Project's Rule of Law Index

Materials and Downloads

Explore the materials, john carey on the rule of law.

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