England is a unique place. It’s part of Europe, but yet it’s isolated from the rest of Europe by water. A Viking could not just walk over a hill and take it over. Conquering England took a bit of work. Furthermore, any exchange of ideas or trade with the continent required some travel. So, England did develop somewhat independently from the rest of Europe and wound up doing things a little differently.

Life as a Serf

If we imagine life in England’s post-Roman period, we gain insight into how the legal system developed there. Imagine you are a resident of England in the 5th or 6th Century. The Romans were long gone, and statistically you’d most likely be a serf living within the feudal or manorial system. Serfdom was not slavery; it was just a really dreadful contract. You’d live on land owned or controlled by some nobleman. You’d owe duties of labor to the nobleman, and the nobleman (or “lord”) would give you protection and land to live on. The lord could not evict his serfs without cause and was supposed to protect them from the depredations of outlaws or other lords, and he was expected to support them by charity in times of famine.

Nearly every person you’d know was poor and probably hungry at least some of the time, except of course the lord. There were no police, prosecutors, or any criminal law system at all. In fact, England had no nationalized government system at all that we’d recognize today. Sure there was a King, but you’d deal directly with your lord, and your lord would deal with the lord above him. You and your family would likely suffer violence and property “crimes”–but the notion of crime did not exist. Wrongs done to persons, were just that, an invasion of one’s rights committed by another.

Redress by Vengeance

So, without formal courts, where would you turn? In the early post-Roman period, there were precious few courts, and certainly none locally. If an assault was made upon your family member, you would have few choices for redress. In a simple society without meaningful judicial oversight and hardly any currency, you and your family would likely personally avenge the violation by committing an assault on a member of the violator’s family. Vengeance in that period was routine. The lord probably wouldn’t care too much about a few isolated instances of revengeful violence. But the lord would care if the violence erupted, as it often did, into a cyclical “blood feud” between families. So, as an alternative to vengeance, you would seek justice from the only authority in your world: your lord. His authority over the manor and its lands would include the right to arbitrate disputes. These informal courts, at first optional, and then compulsory, essentially established a “price” to buy off the feud.

A Cow for a Cow

The court, seeking to avoid violence, would award compensation to the wronged party. A stolen cow would be an easy case. The lord would command that the cow be returned. The killing of a cow would also be an easy case. The lord would demand that a different cow, or its equivalent in value, be awarded. But in a case of an assault on a person or even death, the lord would be forced to substitute some form of property in compensation for physical harm. Essentially, this idea is the beginning of the tort claim, where currency or property is awarded to compensate for an incalculable loss such as pain or life.

And here is where the great fundamental idea of our legal system becomes illuminated. That great idea is the common law, a system of law developed by courts applying precedent and tradition, and not necessarily following written codes or statutes. “Stare decisis” is the policy of a court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere–“to stand by and adhere to decisions and not disturb what is settled.” The other European states independently developed a dissimilar civil law system, a system of law based principally on a codified set of statutes. Stare decisis is not applied in a civil law system because civil law judges cannot make law.

Stare Decisis

And so the early courts of England, lacking written laws, arbitrated disputes at first by logic and later by experience. These courts would simply ask themselves “how did we resolve this last time?” That is how the common law was born. Assume the lord was determining compensation for the death of a child. The lord would turn to whatever precedent he had. He, or even his father, might have heard a similar case a few years before. If the lord had no exact case, he might interpret a similar case, such as the death of an elderly person. If there was no exact case, the lord might turn to another nobleman for his experience. The lord might even rely on weak precedent, such as the unwritten story of a similar feud in a neighboring manor. Over centuries, this informal system grew in complexity and organization. Eventually, the courts became more formal, and the jurists more professional and adept. Throughout, the common law and its methods remained the cornerstone of the system.

American courts today apply the same analysis of precedent when deciding a case. We have statutes now, to be sure, but precedent remains requisite in our system today.


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