Origins and Definition of Common Law
By Brian Madigan
Frequently, people will ask “what is common law”. And, just as frequently
someone will provide a simple definition, but somewhat different than the
one you heard before. So, let’s have a look at the term “common law” in its
Common Law is basically a description of our legal system. The term is
used with a slightly different meaning depending upon the question being
asked. It is fair to say that Ontario has a common law legal system.
Historically, its origins were in feudal England. The Magna Carta (1215) an
agreement between the King and his Lords is customarily viewed as the
beginning of common law. But, if you read the document you will see that
its origins were earlier than that. It would also be reasonable to say that it
goes back to “time immemorial” which by the way is not the beginning of
time, but 1066, the date of the Norman invasion. The fusion of French and
English cultures at that time is also considered by some scholars as the
beginning of the common law.
It is noteworthy that certain rights were given to free men (frequently
referred to as commoners) and they had the right to have their disputes
resolved in a Court of Law (which was called the Court of Common Pleas).
Most disputes involved land. There were no specific rules to follow. So,
each case was decided on its own merits. After a period of time, there was a
need to have consistency, and it is this consistency, which led to important
legal decisions being recorded (that is written down) and distributed so that
others might rely upon them. These records of important decisions came to
be used for guidance in other cases. Ultimately, important decisions became
precedents, and would be applied in all similar cases.
The concept of “consistency” came to embody the elements of “fairness and
justice”. Everyone was treated equally and their station in life was no longer
relevant. The motto “justice is blind” expresses this very concept. As well,