Common law, also called Anglo-American 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.

Henry II and Thomas Becket

Henry II (left) disputing with Thomas Becket (centre), miniature from a 14th-
century manuscript; in the British Library (Cotton MS. Claudius D.ii).
By permission of the British Library
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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.

The feudal land law

During the critical formative period of common law, the English economy
depended largely on agriculture, and land was the most important form of wealth.
A money economy was important only in commercial centers such as London,
Norwich, and Bristol. Political power was rural and based on landownership.

Land was held under a chain of feudal relations. Under the king came the
aristocratic “tenants in chief,” then strata of “mesne,” or intermediate tenants, and
finally the tenant “in demesne,” who actually occupied the property. Each piece of
land was held under a particular condition of tenure—that is, in return for a certain
service or payment. An armed knight, for example, might have to be provided to
serve for a certain period each year. Periodic services tended to be commuted into
fixed annual payments, which, under the impact of inflation, ceased to have much
value over time. The “incidents,” or contingency rights, however, were assessed at
current land value and remained important. For example, the feudal lord had the
right to take a tenant’s land if he died without heirs; if he did have heirs, the lord
was entitled to compensation for exercising wardship and granting permission to
marry (see wardship and marriage).

Succession to tenancies was regulated by a system of different “estates,” or rights

in land, which determined the duration of the tenant’s interest. Land held in “fee
simple” meant that any heir could inherit (that is, succeed to the tenancy), whereas
land held in “fee tail” could pass only to direct descendants. Life estates (tenancies
lasting only for one person’s lifetime) could also be created. Title to land was
transferred by a formal ritual rather than by deed; this provided publicity for such
transactions. Most of the rules governing the terms by which land was held were
developed in local lord’s courts, which were held to manage the estates of the
lord’s immediate tenants. The emergence of improved remedies in the King’s
Court during the late 12th century led to the elaboration and standardization of
these rules, which marked the effective origin of the common law.

The pace of change in the 13th century led to the passage of statutes to regulate
matters of detail. The life tenant, for example, was forbidden in the 13th century to
use the property in such a way as to damage it or to cause it to deteriorate unless
the grant specifically allowed it, and the tenant “in tail” was forbidden to ignore the
system of descent laid down for his property. Because a significant proportion of
disputes in the common-law courts were related to the occupation of land, the land
law was the earliest area of law to elaborate a detailed set of substantive rules,
eventually summarized in the first “textbook” of English law, Littleton’s Tenures,
written by Sir Thomas Littleton and originally published in 1481.

Primogeniture—i.e., the right of succession of the eldest son—became

characteristic of the common law. It was designed only for knight-
service tenures but was inappropriately extended to all land. This contrasted with
the widespread practice on the Continent, whereby all children inherited equal
shares.

Development of a centralized judiciary

The unity and consistency of the common law were promoted by the early
dominant position acquired by the royal courts. Whereas the earlier Saxon witan,
or king’s council, dealt only with great affairs of state, the new
Norman court assumed wide judicial powers. Its judges (clergy and statesmen)
“declared” the common law.

Royal judges went out to provincial towns “on circuit” and took the law of
Westminster everywhere with them, both in civil and in criminal cases.
Local customs received lip service, but the royal courts controlled them and often
rejected them as unreasonable or unproved. Common law was presumed to apply
everywhere until a local custom could be proved. This situation contrasted
strikingly with that in France, where a monarch ruled a number of duchies and
counties, each with its own customary law, as well as with that in Germany and
Italy, where independent kingdoms and principalities were also governed by their
own laws.

This early centralization also diminished the reception of Roman law in England,
in contrast to most other countries of Europe after the decline of feudalism. The
expression “common law,” devised to distinguish the general law from local or
group customs and privileges, came to suggest to citizens a universal law, founded
on reason and superior in type.

By the 13th century, three central courts—Exchequer, Common Pleas, and King’s
Bench—applied the common law. Although the same law was applied in each
court, they vied in offering better remedies to litigants in order to increase their
fees.

The court machinery for civil cases was built around the writ system. Each writ
was a written order in the king’s name issued from the king’s writing office,
or chancery, at the instance of the complainant and ordering the defendant to
appear in the royal courts or ordering some inferior court to see justice done. It was
based on a form of action (i.e., on a particular type of complaint, such as trespass),
and the right writ had to be selected to suit that form. Royal writs had to be used
for all actions concerning title to land.

Bracton and the influence of Roman law

Under Henry III (reigned 1216–72), an unknown royal official prepared an

ambitious treatise, De legibus et consuetudinibus Angliae (c. 1235; “On the Laws
and Customs of England”). The text was later associated with the
royal judge Henry de Bracton, who was assumed to be its author. It was modeled
on the Institutiones (Institutes), the 6th-century Roman legal classic by
the Byzantine emperor Justinian I, and shows some knowledge of Roman law.
However, its character—as indicated by the space devoted to actions and
procedure, to the reliance on judicial decisions in declaring the law, and to
statements limiting absolute royal power—was English. Bracton abstracted several
thousand cases from court records (plea rolls) as the raw material for his book. The
plea rolls formed an almost unbroken series from 1189 and included the writ,
pleadings, verdict, and judgment of each civil action.

Henry III
Henry III of England, illustration in Cassell's Illustrated History of England, 19th
century.

Early statute law

Edward I (reigned 1272–1307) has been called the English Justinian because his
enactments had such an important influence on the law of the Middle Ages.
Edward’s civil legislation, which amended the unwritten common law, remained
for centuries as the basic statute law. It was supplemented by masses of specialized
statutes that were passed to meet temporary problems.
Edward I
Edward I.
Hulton Archive/Getty Images
Four of Edward’s statutes deserve particular mention. The first Statute of
Westminster (1275) made jury trial compulsory in criminal cases and altered land
law. The Statute of Gloucester (1278) limited the jurisdiction of local courts and
extended the scope of actions for damages. The second Statute of Westminster
(1285), a very long enactment, instituted four main changes: (1) it confirmed the
estate tail in land, which had often been linked with the maintenance of titles of
honour; (2) it made land an asset for purposes of paying judgment debts (i.e., those
debts judged to exist by a court); (3) it liberalized appeals to high circuit courts;
and (4) it improved the law of administration of assets on death. The Statute of
1290, generally referred to by its opening words, Quia emptores
terrarum (“because sellers of lands”), barred the granting of new feudal rights,
except by the crown, and made all land held in fee simple freely transferable by
denying interference by relatives or feudal lords.

In modern times the statutes issued prior to 1285 are sometimes treated as common
law rather than statute law, as these laws tended to restate existing law or give it a
more detailed expression. They explained what the law was, but they did not make
an entirely new law. In fact, some authorities doubted whether governments had
the right to change ancient customs at all. In addition, judges did not always adhere
closely to the words of the statute but tried to interpret it as part of the general law
on the subject. Prior to the rise of the House of Commons, it also was difficult to
distinguish acts of Parliament from the decisions or resolutions of the royal
council, the executive authority. Some statutes were passed but never put into
force, while others seem to have been quietly ignored. Moreover, it is clear that,
well into the 14th century, the royal council—sometimes operating through the
chancery—was able to dictate new remedies, such as a particular action on a case,
and to preserve existing remedies, such as those protecting estates tail.

Growth of chancery and equity

Since legal rules cannot be formulated to deal adequately with every

possible contingency, their mechanical application can sometimes result in
injustice. In order to remedy such injustices, the law of equity (or, earlier, of
“conscience”) was developed. The principle of equity was as old as the common
law, but it was hardly needed until the 14th century, since the law was still
relatively fluid and informal. It has been said that what was truly new was not
equity but law. As the law became firmly established, however, its strict rules
of proof (see evidence) began to cause hardship. Visible factors of proof, such as
the open possession of land and the use of wax seals on documents, were stressed,
and secret trusts and informal contracts were not recognized.

Power to grant relief in situations involving potential injustices lay with the king
and was first exercised by the entire royal council. Within the council, the lord
chancellor—a leading bishop—led the meetings and, probably as early as the reign
of Richard II (1372–99), dealt personally with petitions for relief. Eventually the
chancellor’s jurisdiction developed into the Court of Chancery, whose function
was to administer equity. Much of the work concerned procedural delays and
irregularities in local courts, but gradually the power to modify the operation of the
rules of common law was asserted.

The chancellor decided each case on its merits and had the right to grant or refuse
relief without giving reasons. Common grounds for relief, however, came to be
recognized. They included fraud, breach of confidence, attempts to obtain payment
twice, and unjust retention of property.

Proceedings began with bills being presented by the plaintiff in

the vernacular language, not Latin; the defendant was then summoned by a writ
of subpoena to appear for personal questioning by the chancellor or one of his
subordinates. Refusal to appear or to satisfy a decree was punished
by imprisonment. Because the defendant could file an answer, a system of written
pleadings developed.

Inns of Court and the Year Books

During Edward I’s reign the office of judge was transformed from a clerical
position into a full-time career. Admission to the bar (i.e., the right to practice as
a barrister before a court) was made conditional on the legal knowledge of the
applicant. Law thus began to emerge as a profession, which required permanent
institutions and some kind of organized legal education.

As the legal profession grew, the more experienced barristers were admitted to the
dignity of serjeant-at-law and later banded together with the judges, who were
appointed from their ranks, at Serjeants’ Inns in London. There, burning legal
problems were informally discussed, and guidance was given to all concerning the
decisions of actual or likely cases. The four Inns of Court (Gray’s Inn, Lincoln’s
Inn, Inner Temple, and Middle Temple) evolved from the residential halls of junior
barristers to become the bodies officially recognized as having the right to admit
persons to the bar. Education consisted of attending court, participating in
simulated legal disputes (moots), and attending lectures (readings) given by senior
lawyers.

Bracton’s work was adapted for purposes of study for a time, but it soon became
outdated. Bar students therefore had to make notes in court of actual legal
arguments in order to keep abreast of current law practices. These notes varied
widely in quality, depending on the ability of the notetaker and the regularity of his
attendance, and starting in about 1280 they seem to have been copied and
circulated. In the 16th century they began to be printed and arranged by regnal
year, coming to be referred to as the Year Books.

The Year Book reports were usually written in highly abbreviated law French.
They did not always distinguish between the judges and barristers and often simply
referred to them by name. The actual judgment also was often omitted, the interest
centring rather upon the arguments presented by barristers in court. Although
previous decisions were not generally binding, great attention was paid to them,
and it appears that the judges and barristers referred to earlier Year Books in
preparing their cases. Thus, case law became the typical form of English common
law.

The dynastic Wars of the Roses in the latter part of the 15th century led to a
practical breakdown of the legal order. Powerful hereditary aristocrats in the
country, backed by private armies, and dominant commercial families in the towns
were beyond the effective reach of the royal writ. When legal proceedings were
possible, they were often manipulated or frustrated by the crown’s “overmighty
subjects,” who intimidated and corrupted justices, sheriffs, juries, and witnesses.

The rise of the prerogative courts

The accession of Henry VII in 1485 was followed by the creation of a number of
courts that stood outside the common-law system that Henry II and his successors
had instituted. In part, this mirrored wider developments in Europe that were
associated with the new learning of the Renaissance, which promoted the growth
of bureaucratic written process as opposed to the oral proceedings of the customary
common law. The newer courts were described as prerogative courts because they
were identified with the royal executive power, though some of them had a
statutory origin. Thus, the Council of the North at York was set up by statute in
1537, and the Council of Wales and the Marches at Ludlow were confirmed by
statute in 1543, though both had been preceded by older prerogative courts in those
“frontier” regions. The Court of Requests was given regular status by an
administrative action in 1493. The Court of Star Chamber, once thought to have
been given its authority by a statute of 1487, is now believed to have evolved from
the royal council, which began acting as a judicial committee in the early 16th
century. All these courts competed for business with the existing common-law
courts, which led the latter to develop new remedies that proved more effective and
expeditious than those previously available, particularly with regard to the action
of trespass.

In the Court of Requests, which had counterparts in France, the costs of procedure
were lower than in common-law proceedings; it was designed to accommodate
small civil claims by the poor. The judges of the court were styled masters of
requests, and they had many other duties, which often caused delays. The court
flourished in the 17th century until the English Civil Wars (1642–51), when the
procedure by which it operated was abolished. Its example of offering a simple,
cheap procedure was imitated by several statutory courts that were set up in towns
in later times and were also known as courts of requests.

Whereas the common-law courts punished “hanging crimes,” such

as murder and robbery, the Star Chamber dealt with more-sophisticated offenses,
such as forgery, perjury, and conspiracy. Fines and sentences of imprisonment
were the usual punishment. Common-law judges, lay peers, and bishops sat on this
court, which also exercised civil jurisdiction. It lost its original popularity when the
early Stuart kings used it to stifle political opposition, and its name eventually
became synonymous with repression. It was abolished in 1641, and most of its
jurisdiction was absorbed by the common-law courts in 1660.

The rather specialized High Court of Admiralty developed under royal prerogative
in the 14th century; a statute of 1391 prohibited it from meddling in cases not
arising at sea. In Tudor and early Stuart times, however, it exercised a wide
commercial jurisdiction. After the Civil Wars it was confined exclusively to trying
maritime disputes.
The 16th-century revolution

Throughout Europe, the 16th century was a period of considerable change in the
law. In part a reaction by the learned against the law of the past—which was seen
to be too dependent upon ancient Roman models or local Germanic custom—the
changes usually took the form of an explicit commitment to improved procedures,
above all written rather than oral. One consequence was the increased influence of
universities and university-trained lawyers. In England, the old customary law
applied by the central courts at Westminster was too firmly entrenched to be lightly
overthrown, but even here the development of written pleadings and new, speedier
remedies had a transforming effect. The aforementioned prerogative, or conciliar,
courts, together with the Court of Chancery, competed with common-law courts
for jurisdiction over the same cases and followed a written procedure modeled
after that still being used on the Continent. Roman law and canon law were taught
at the Universities of Oxford and Cambridge, which awarded doctorates to the
practitioners in these courts.

One of the accusations reportedly made against Thomas Wolsey,

the cardinal and lord chancellor who fell from favour in 1529, was that he planned
to introduce Roman law into England; Wolsey did appoint many clergy to the
Council of the North and as justices of the peace. The 19th-century English legal
historian Frederic William Maitland discussed this legal crisis in his work English
Law and the Renaissance (1901). Maitland ascribed the survival of the common
law in part to the solid front presented by the Inns of Court, which trained lawyers
practically and not theoretically. The English law tradition depended not on
abstract scholarly commentaries but on detailed judicial rulings about specific
points of law arising in practice.

The influence of Roman-law ideas, however, was probably greater than generally
admitted. The actions of trespass and disseisin (dispossession; see adverse
possession) had Roman analogies, as did the liabilities of those following the so-
called “common callings” of innkeeper, carrier of goods, and stable keeper. The
equitable remedy of injunction had analogies in canon law, and the law of
redemption of mortgages may have been related to the usury laws, which forbade
making excessive profits from loans. The law of trusts and deceit resembled
the breach of faith of the church courts. Continental mercantile law, which
contained Roman-law elements, was absorbed into English law as it stood.
Continental law also contributed to some of the rules of contract, such as the effect
of mistake, and the Roman concept of fault played a part in the law of negligence.
Many old European legal ideas, in fact, survived longer in England—where they
escaped being eliminated in codifications—than in Europe.

An account of the development of common law in the Tudor-Stuart period would

be incomplete without mention of Sir Edward Coke, who combined a distinguished
career as a barrister and a judge and produced a wealth of legal writings. In 1606
he risked removal from the office of chief justice by challenging the exaggerated
claims of the royalist party to prerogative powers outside the common law. He
disapproved of legislation by proclamation, of dispensation from the law in
individual cases, and of the mushrooming jurisdictions of the prerogative courts.
He helped draft the Petition of Right in 1628.

Sir Edward Coke

Sir Edward Coke, engraving by Jacobus Houbraken, 1741.
Yale Center for British Art, In Memory of John V. McCarthy (B2002.3.2)
Coke’s 11 volumes of Reports appeared between 1600 and 1615, and two
posthumous volumes followed. Coke commented rather than reported, but he was
careful to supply a copy of the court record of each case. As the only formal series
of collected law cases available at the time, his reports formed the main source for
the citation of cases for many years. His four volumes of Institutes of the Lawes of
England, published between 1628 and 1644, dealt with the law of real
property (Coke on Littleton), medieval statutes, criminal law (pleas of the crown),
and jurisdiction of the courts.

Coke was no objective historian but an open advocate of the common law. Though
he was old-fashioned and at times in error, his greatest works restated the common
law in acceptable form and did much to preserve it.

Further growth of statute law

The Tudors made use of proclamations by the king to invoke emergency measures,
to establish detailed regulations, especially on economic matters, and to grant
royal charters to trading companies. Parliament passed laws of a political nature,
such as those enforcing the king’s supremacy over the newly established Church of
England. Statutes also regulated imports and exports, controlled farming, and
defined what was unfair competition. A law of 1562–63 regulated apprenticeships
and provided for annual wage fixing by magistrates in accordance with the cost of
living.

There were other important statutory innovations during these years. The Statute of
Monopolies of 1623 confirmed that monopolies were contrary to common law but
made exceptions for patentable inventions, and a statute of 1601 became the basis
of the privileges enjoyed by charitable trusts. Additionally, the series of Poor
Laws enacted in the late 16th century remedied the neglect of the poor caused by
the dissolution of the monasteries.

In 1540 legal actions to recover land were subjected to time limits. However, in
1623–24 the principle of limitation of actions by lapse of time was introduced into
the law of contract and tort.

During the Commonwealth (1649–60), many reform projects were drafted.

Although they anticipated 19th-century reforms, none of them were carried out.
These reforms included supplying counsel to prisoners, modernizing the land and
law procedure, and permitting civil marriages.

The outstanding enactment of the later Stuart period was the Statute of Frauds of
1677. As a response to the growth of literacy and the prevalence of perjury and
fraud, wills and contracts for the sale of land or goods (of more than a certain
amount) were required to be in writing. Though drafted by eminent judges, the
statute was to require endless interpretation.

Consolidation of equity

Although one eminent contemporary observer, legal historian John Selden,

regarded the fate of a lawsuit in chancery as varying with the chancellor’s
personality, the types of suits that would be granted relief had eventually become
fairly clear. Precedent was being followed, and law reports of equity decisions and
books on equity began to be published.

In 1615 King James I declared that the chancery was to retain its traditional
superiority over the common-law courts, but only in areas in which its authority
was well recognized. If the applicability of equity was in doubt, the common law
was to be followed.

The main development in this period was in the law of trusts (see property law). In
medieval England from the 14th century, most land was held “to uses” (i.e., by
nominees for the true owners). This situation may have been partly due to devices
used to evade feudal taxation, but it also enabled wills of land to be made. “Death
duties” were payable if a man died while he was the legal proprietor. However, if
the land was transferred to another person prior to death, these could be avoided.
Wills of land were not generally allowed before 1540, but the use of land could be
transferred to another person while the owner was still alive, as long as the
transferee observed the owner’s wishes regarding the land while the owner lived.
The beneficiary of such a use or trust usually stayed on the land as apparent owner,
though the trustee held the legal title. Because the common-law courts recognized
the trustee as the only owner, a beneficiary had to go to chancery in order to
enforce his rights. A statute of Richard III (reigned 1483–85), however, allowed
the beneficiary to transfer the property, and in 1536 the Statute of Uses eliminated
the middleman and revested the legal title in the beneficiary. This was done to
ensure that the crown maximized its income from feudal taxation: the beneficiary
was now the legal owner of the land and liable to the feudal dues, as he had been
before the development of the device. Although old-style uses could not be created
for some time following the statute, the old use was revived from the late 16th
century as the modern trust in chancery, first for trusts involving money
and leases and finally for trusts of land itself. The spur was the desire to separate
the legal and beneficial titles, especially when the beneficiary was young or
inexperienced. But the trust was adapted to many other ends, such as giving
property to clubs and other unincorporated bodies and to churches.

His most influential work, the Commentaries on the Laws of England, was
published between 1765 and 1769 and consisted of four books: Of the Rights of
Persons dealt with family and public law; Of the Rights of Things gave a brilliant
outline of real-property law; Of Private Wrongs covered civil liability, courts, and
procedure; and Of Public Wrongs was an excellent study of criminal law.

Blackstone was far from being a scientific jurist and was criticized for his
superficiality and lack of historical sense. The shortcomings of
the Commentaries in these respects, however, were offset by its style and
intelligibility, and lawyers and laymen alike came to regard it as
an authoritative exposition of the law. In the following century, the fame of
Blackstone was even greater in the United States than in his native land. After the
American Declaration of Independence (1776), the Commentaries became the
chief source of knowledge of English law in the New World.

Declaration of Independence
Image of the Declaration of Independence (1776) taken from an engraving made
by printer William J. Stone in 1823.
National Archives, Washington, D.C.
Reforms since the 19th century

Bentham

Following the social turmoil of the French Revolution (1789) and the economic
upheaval of the Industrial Revolution, there were many demands for reforms to
modernize the law. The most significant figure in the reform movement was the
English utilitarian philosopher Jeremy Bentham, who was prepared to reform the
whole law along radical lines. A brilliant student, Bentham disliked the picture of
the law that he had heard presented in Blackstone’s lectures. In 1769 he entered the
bar, but, since he was living on an inheritance, he never found it necessary to enter
practice. He worked to make law less technical and more accessible to the people,
but he was slow to complete or publish his writings. His basic work, An
Introduction to the Principles of Morals and Legislation, did not appear until 1789.
Jeremy Bentham
Jeremy Bentham, detail of an oil painting by H.W. Pickersgill, 1829; in the
National Portrait Gallery, London.
Courtesy of the National Portrait Gallery, London
Bentham attacked legal fictions and other historical anomalies. He advocated two
basic changes in the legal system: (1) in order to achieve the greatest happiness for
the greatest number, legislators—rather than courts—should make the law; and (2)
the aims of law should vary with time and place.

The fame of the Principles spread widely and rapidly. Bentham was made a French
citizen in 1792, and his advice was respectfully received in most of the countries of
Europe and in the United States. Although he wanted most of all to be allowed to
draw up a legal code for his own or some foreign country, his practical influence
was far more indirect and derived largely from the diffusion of utilitarian ideas
during the 19th century.

Changes in procedure and criminal law

In England the old framework of the separate forms of action in civil cases was
replaced in 1852 by a new system of uniform writs of summons, and
liberal amendment of pleadings was permitted. Fixed dates were established for
trials. In 1933 jury trial was ended in civil cases, except in libel (see defamation)
and a few other actions. A series of evidence acts simplified civil proof. Far-
reaching reforms of civil procedure were introduced in 2000 as a result of a report
by a judge, Lord Woolf, who was appointed lord chief justice to implement the
changes called for in his report. These principally consisted in simplifying
procedure, but language was also altered, so that plaintiffs became claimants and
the use of old, often Latin, terms and phrases was abandoned in favour of plainer
English expressions.

A major trend in criminal procedure since the early 19th century has been better
protection of the rights of the accused. Since 1836 accused persons have been
entitled to counsel (see assigned counsel), and since 1898 they have been allowed
to testify on their own behalf. In 1903 provision for the state to pay for defense was
made—it has since been expanded—and in 1907 the right of appeal against
criminal convictions was created. In 1967 verdicts by a majority of the jury were
made possible, and restrictions were imposed on press coverage of
preliminary hearings. Further changes to criminal procedure have frequently been
discussed, including the restriction of jury trial to certain types of cases. This
particular suggestion, however, has proved politically undesirable in most cases—
except in Northern Ireland, where criminal cases involving suspected
paramilitaries were tried before judges alone from 1973 to 2007.

The 19th century saw the enactment of a series of statutes that codified the part of
criminal law dealing with individual crimes, apart from homicide. Basic ideas have
changed little, other than the fact that some modern statutes have imposed
responsibility without fault and that corporations can now be held responsible for
the acts of their management.

The rules of legal insanity were laid down in the 19th century and supplemented in
1957 by the limited defense of “diminished responsibility.” Capital
punishment was gradually ended for most felonies and was finally eliminated for
murder by the Homicide Acts of 1957–65. In 1968 a new Theft Act, amended in
1978, replaced the old idea of larceny by a broader concept that resembles the
Roman delict (offense) of theft. Experimentation has led to new remedies, one of
these being the suspended sentence, which has to be served only if a further crime
is committed.

Reorganization of the courts

The jurisdiction of the church courts over the laity ended in 1857,
when secular divorce and probate courts were set up. These merged into the High
Court of Justice in 1875 as a result of the Judicature Acts of 1873–75, which
reformed the civil courts. The Judicature Acts were much more than a regrouping
and renaming of courts; they attempted to fuse law and equity by making available
legal and equitable remedies in all divisions of the High Court and by providing
that the equitable rule should prevail when conflicts arose. Common law
and equity nevertheless preserved their separate identities, partly because of the
different subject matter with which they often dealt and partly because lawyers
persisted in maintaining the distinction.

In the late 19th century the three central courts of common law were amalgamated
as the Queen’s Bench Division, which to this day continues to try suits
for damages. Since 1875 cases have been tried by a single judge (sometimes,
before 1933, with a jury), not by a full bench of judges.
After it became a division of the High Court in 1875, the chancery not only dealt
with equity suits but also administered the voluminous legislation on
property, bankruptcy, succession, copyrights, patents, and taxation. Contested
probate cases were transferred to the chancery by the Courts Act of 1971. The
Family Division of the High Court, dealing with matrimonial cases and issues
relating to children, was created at the same time.

Before the Courts Act, criminal cases were tried two or three times a year
at assizes (sessions) of the High Court or four times a year at quarter-sessions of
magistrates in the provinces. A system of permanent provincial crown courts has
replaced these. Civil assizes were replaced by allowing the High Court to sit at
certain cities. Small civil cases, tried at statutory county courts since 1846, are now
regulated by an act introduced in 1984.

A remarkable feature of English criminal justice, as compared with most European

systems, has been the continuing role of lay magistrates, who remain important
despite the appointment of paid, legally trained magistrates, now known as district
judges, in London and some of the larger cities. An important aspect of the
magistrates’ work has been their jurisdiction over young offenders, for whom
special juvenile courts were first set up in 1908. The report of a royal commission
on justices of the peace in 1948 strongly defended the position of
lay justice against public criticism; its cautious recommendations as to the
appointment of justices and as to the organization of their courts were largely put
into effect by the Justices of the Peace Act (1949) and the Magistrates’ Courts Act
(1980). The Criminal Justice Administration Act (1962) extended the power of
justices of the peace to try indictable offenses summarily. A series of later statutes
rendered the procedure more flexible, made detailed provision for penalties and
their execution, and added a number of new offenses. In 1964 elementary judicial
training for lay justices was introduced; this is now regulated by the Judicial
Studies Board. In 1994 the local committees that appoint lay magistrates were
revised and made more accountable. Magistrates are now provided with immediate
and frequently revised guidance and training through online facilities. These
developments, since 1948, show both the persistence in English law of ancient
institutions and a preference for reforming rather than totally abolishing them.

A modern appellate court for civil cases in the High Court was set up in 1830 but
was replaced in 1875 by a Court of Appeal consisting of special appellate judges.
In 1907 a Court of Criminal Appeal was established, but it was merged into the
Court of Appeal in 1966. A divisional court hears appeals from magistrates on
points of law. A final appeal, subject to conditions, can be made to the Supreme
Court, which replaced the House of Lords as a court of final resort by
the Constitutional Reform Act 2005.

Public law

In the early part of the 20th century, it could be asserted that there was no public
law in England in the sense of a set of rules regulating the administration of public
affairs, which differed from those operating in the private sphere. To some this was
a source of pride, contrasting with the law in countries with a more highly
developed centralized administration. But, in effect, it disguised the degree to
which the government in the United Kingdom was unfettered by legal norms.
Beginning with the regulation of local government in the first part of the century
and marked by famous if ineffective challenges to the powers exercised by
the executive during two world wars, a body of public-law remedies was slowly
developed to challenge the executive’s freedom to act or at least to call it to
account for its actions. Their distinctive features were given greater clarity
following the United Kingdom’s entry into the European Economic
Community (ultimately succeeded by the European Union [EU]) in 1973. Within
the EU a range of remedies, largely modeled on those created by the French
administrative courts, serve to hold institutions of both the EU and national
authorities to account for acting in excess of the powers granted to them by the
constitutive treaties of the Union. By the 1980s it was being said that a new branch
of English law had been created, though by the early 21st century it was rather
perceived that a process of assimilation of wider European ideas into the English
common law was developed (see also European law). It remained to be seen
whether Britain’s exit from the EU in 2020 would unwind this assimilation.

Reform in private law

Since 1965 a permanent Law Commission has been charged with keeping the law
under constant review and making proposals for change. Although it has had some
notable successes in producing changes to the law regarding
corporate manslaughter and in the creation of third-party rights in contract, its
activities are often stifled by the unwillingness of the government to find
parliamentary time for technical reforms without political content. Thus, neither a
proposal to codify the general provisions of criminal law nor reforms to the law
regarding nonpecuniary loss in cases of personal injury have been implemented.
Wills are regulated mainly by a statute of 1837 (amended in 1982), and the
freedom to disinherit has been curtailed by a series of family provision acts,
thereby assimilating the common law to those systems, like that in Scotland, that
have always required provision to be made for the family. Title to land is subject to
a system of registration that has been gradually introduced under an act of
1925. Intestate succession (i.e., in the absence of a valid will) for all kinds of
property was unified in the same year. The law of leases has been modified by
social legislation such as the numerous Rent (control) Acts, which protect
residential tenants, and by a statutory system of leasehold enfranchisement, which
allows holders of land under long leases to purchase the freehold. The terms of
trusts can be modified by the chancery (since 1958), and a wider range of trustee
investments have been allowed since 1961.

Grounds for divorce were enlarged by a number of 20th-century statutes, leading to

the broad “breakdown of marriage” approach of the Divorce Reform Act of 1969.
This approach was taken further in the Family Law Act of 1996, which removed
the requirement for divorce that one of the parties has committed adultery or some
other offense against the other and which stressed the role of mediation in
resolving family disputes. Under this legislation a marriage may be terminated
expeditiously when the partners are in agreement.

After several piecemeal laws addressed trade unions, a more comprehensive—

though controversial—Industrial Relations Act was passed in 1971, requiring
registration of unions and arbitration of disputes. Although the system established
by this statute fell into political disfavour following several bitter trade disputes in
the 1970s, it paved the way for the greater regulation introduced in the 1980s.
From the 1990s, a series of comprehensive measures, including the Employment
Rights Act (ERA) of 1996, have created a large degree of protection for
employees.