Common Law is an unwritten Law that applies to everyone established by judicial decisions. Before the Norman Conquest of England in 1066, different areas of England were governed by different systems of Law such as in the North of England, Dane Law applied, in the Midlands, Mexican Law applied and in the South and West of England Wessex Law applied . These laws were originated in customs, and these customs became the groundwork for our ‘common law’ today. Customs are rules of behaviour developed within a community without intentionally being invented.
In 1066 William the Conqueror gained the English throne and the development of the law instigated. He began with allowing people to apply to him directly which was known as the King’s Justice. To do this people had to go through an application process called a “Writ” that would be submitted to the Curia Regis (King’s Court) also set up by the King, and they would decide whether or not they shall accept the case to be heard. There are two types of customs; general customs and local customs.
General customs are believed to be the basis of our Common Law and local customs are customs that are used where a person claims he is entitled to some local rights. William the Conqueror embarked on making a more certain and consistent law. Delegates of the King (Itinerant Justices) travelled around areas of England to adjudicate local disputes, and finalise decisions in his name. When returning the Itinerant Justices discussed these matters with the King at Westminster, the King eventually recognized how different laws varied within different areas and how there wasn’t a fixed law everyone can stand upon.
Once this had been recognized the itinerant justices brought all the customs together and began the sifting test whereby customs would either count as a law or be disregarded. The test was processed in the following way: “The custom must have existed since time immemorial” “The custom must have been exercised peaceably, openly and as of right” “The custom must be definite as a locality, nature and scope” “The custom must be reasonable”.
It was highly unlikely the courts ever considered new customs, however there were some such cases whereby this was accepted these were Egerton v Harding (1974) and New Windsor Corporation v Mellor (1974). This slowly began to structure Common Law and also was being used throughout areas of England where laws were said to become more reasonable. Another rule of law was the principle of ‘Stare Decisis’ this was an idea based on treating like cases alike allowing the law to be more predictable.
The king’s justice gained popularity rapidly and eventually was being used by many people when they were involved in a civil case, however it was expensive and only the higher class could afford such law but by the time Henry II became king (1154-89) many advantages arose to taking a dispute to court. This was because at this time the Royal Courts were impartial and had great authority; making decisions much quicker then the local courts. Ultimately by about 1250 a ‘Common Law’ had industrialised that applied the whole country.