A Peculiar Invasion & its Legal Impact in the English Speaking World

Peter B. GiblettStarred Page By Peter B. Giblett, 10th Jan 2013 | Follow this author | RSS Feed
Posted in Wikinut>Guides>History

Where do your legal rights come from? If you live in the English speaking world then you may be surprised about the common threads over the past thousand years that links many of our basic rights together, and how the impact extends today.

Introduction

If you take a look at the legal systems in the USA, Canada, Australia, South Africa and many other nations in the world today you will see that they are based on a type of old English law called "Common Law" and this legal foundation is almost a thousand years old. Indeed it dates from the Norman invasion of England.

Much of what we think of as English in the modern era is based on Norman customs and their English adaptation over time and it all starts with a most peculiar invasion that happened in the year 1066.

A Most Peculiar Invasion

The Norman conquest of England was a most peculiar affair in that the invading army from Normandy in northern France yet as soon as they defeated the English King Harold, at the battle of Hastings the Norman conquerors moved their capital city to the English capital of Winchester and adopted the customs of the invaded country this new empire included all of England and about a third of modern France. No invading army before or since has tried to imbue themselves with the customs of the nation they have just defeated.

As an aside the Norman conquest of 1066 was the last successful invasion on the English mainland.

Another peculiar fact about the Normans are that they we not from France at all, they were a Norse (or Viking) army that had that had left their homelands and invaded northern France some time beforehand and subsequently extended their reign to a large portion of that country, the invasion of France was clearly only part of a larger plan, which included the English lands.

Common Rules Across the Land

Part of the Norman rule meant that the new king sent out trusted judges across the country to build a common legal framework, with the idea that the whole territory would be bound together by a single set of laws based on the best of existing practices, this had two impacts on modern society, the definition of what is now called Common Law and the creation of the circuit court (a court that would have periodic sessions in the towns on the judges circuit).

Common law was defined as a set of rules that had the same impact wherever they were applied because they were based on laws the judges observed across the land, they were never codified, but were set down in precedent, these being the reasoned judgements from earlier cases, all of which were documented and kept in law reports and any judge deciding a similar case in the future would apply the same rules to the new situation. The idea of common law is that there would be a common approach to legal decisions and thus it would not be necessary to codify every element of the law because judges would be able to make reasoned decisions based upon the law from prior cases, this would allow the law to develop and be extended as new conditions arose in society.

Indeed one aspect of Common Law is the fact that not all laws had to be agreed by law makers, such as our modern parliaments, a large body of laws came from customs adopted across the land. The crime of murder, for example, comes from the common law, and some may argue that it originates from biblical law, yet it may actually be much older than that, almost a basic law across all of humanity, thou shalt not kill, yet the remedy for infringements may differ from land to land, even in those labs where the common law prevails as today there is a different common law in the USA than there is in Britain, yet judges in one jurisdiction are often influenced by decisions made elsewhere, especially where there is no local precedent in a particular legal field.

The one thing that Common Law brings to all countries that have adopted it is consistency. While it is true that the law does develop, a ruling in a case today would be consistent with one decided 150 years ago and some rulings will follow the same general direction as they did 500 years ago, but it is important to remember that lawmakers, such as the House of Representatives or the House of Commons, or other parliaments, change anything they choose and move the law in a different direction or work to enhance the common law in their jurisdiction.

The Magna Carta, 1215

This document become a foundation of English liberty against the arbitrary power wielded by a tyrannous king as was felt by many noblemen to have happened under the rule of King John.

One thing many Americans point to as being influential in the creation of their Constitution is a documents that was signed by King John in 1215 granting free men certain rights, this is the Magna Carta, yet by the time the American revolution took place this document had little legal value, it was then, as it is now, an interesting adjunct to the constitutional history of the English speaking world. The reasons for its creation was to return the rule of law to a kingdom that had lost its way. The landed gentry, the Earls, Dukes, Squires, and other free men needed to be assured that there was certainty and fairness under the law, but remember that England had a feudal society at that time and the rights won by the free, had little impact on the majority in society as the feudal serfs that had little freedom under the law.

Equality under the law remained an issue at least up to the 17th century, and some would argue was not complete till the granting of universal suffrage in the 1920's.

The only remaining clauses of the Magna Carta that are still on statute are:

  • the freedom of the English Church
  • the "ancient liberties" of the City of London
  • the right to due process under the law

The last being the one that has most relevance to the majority of the population.

Bill of Rights, 1689

The next significant element quoted by American constitutional experts is the 1689 Bill of Rights, which in part repeats many of the rights included in the Magna Carta and was certainly a great influence on the minds who drafted the US Constitution. The rights proposed at the time included:

  • No royal interference with the law
  • No taxation by Royal prerogative
  • freedom to petition the monarch without fear of retribution
  • No standing army may be maintained during a time of peace without the consent of parliament
  • No royal interference in the election of members of parliament
  • The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament
  • No excessive bail or "cruel and unusual" punishments may be imposed
  • The freedom of the people to have arms for their own defence as permitted by the rule of law

The first two element here are perhaps the most important as they guaranteed the supremacy of parliament in England, which was an important aspect of the period, being a little more than 40 years after the victory of Cromwell's parliamentary forces over the royal army in 1652 in the English Revolutionary War and constitutionally this war established the precedent that an English monarch cannot govern without Parliament's consent and ensured the continuance of a system that lasts to this day in the UK, parliamentary sovereignty.

One aspect that is covered in this bill is the fact that the people are permitted to have arms for their own defence, but note the rider that is included "as permitted by the rule of law" which is an important aspect because law makers had the right to determine what arms were permitted and how they may be used within the framework of "defensive purposes", so in England this was NEVER an absolute right, but it should also be noted that self-defence has also developed to include defence of property.

The American Impact

Had much of the demands of the American colonists been listened to during the course of the 18th century, particularly the right to representation in the parliament in London, it can be speculated that the history of North America may have been very different indeed, these demands ultimately led to the American Revolutionary war, independence, and the building of new constitutional laws by the founding fathers.

These are represented by the constitution of the United States and its subsequent amendments that act as a bill of rights in that country today, it establishes the rules and the separate powers of the three branches of the federal government: a legislature to create laws; the executive led by the President; and the Judiciary headed through the supreme court. The purpose of this organisation of government is to provide checks and balances that ensure no branch of wields too much power.

Currently the two biggest areas of challenge to the American "Bill of Rights" is in the area of both the first and second amendments, freedom of expression and the right to bear arms.

European Legal System

Outside of Britain and Ireland the majority of Europe lives by Civil Codes which specifically excludes the use of prior case law in deciding current cases before the court, although the Civil Code is frequently amended by parliament in order to keep it in step with the demands of modern society, this is a system of justice that has its origins in Roman Law and exists throughout Europe. These codes have no room for precedent, which is so fundamental to the workings of the common law.

Yet with the formation of a body of European law, with the creation of the European Economic Communities in 1959, which became the European Union in 1993 as a result of the Maastricht Treaty.

The European Court of Justice (ECJ) is the highest court in the European Union (EU) in matters of European Union law, it is tasked with interpreting the law and ensuring its equal application across all EU member states and this court actually implements precedent, the ability to apply past decisions to current cases in interpreting the laws and their application when the Court ruled that the protection of EU law applied to individuals as well as member states, created the principle of direct effect.

International Criminal Court

The International Criminal Court, created in 2002, although much criticised, has much to thank English and American systems of law for including provisions that all defendants are presumed innocent until proven guilty beyond reasonable doubt, the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her.

The English Speaking World

Look at countries like India, New Zealand, Australia, Ireland, Israel, Singapore, Kenya, Uganda, South Africa, Pakistan and many other nations (particularly commonwealth nations) all have their legal systems based on English common law. In some places such as South Africa and Quebec there are bi-juridical, or mixed civil and common law codes and in Pakistan there is bi-juridical mix of common law and Sharia law.

What an interesting thread we weave...

About the Author

Peter B. Giblett has been a senior manager in the business world for over 20 years, then studied law at TVU - London to obtain his LLB(Hons) and subsequently in 2002 qualified as a barrister at the Inns of Court School of Law in London, today he remains a nonpracticing barrister. This page is provided for information only and does not constitute legal advice.

Other related pages include:

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Comments

author avatar Retired
10th Jan 2013 (#)

Excellent article, Peter, I got a review of this in my paralegal studies at Anthem College.

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author avatar M G Singh
10th Jan 2013 (#)

Very informative and wonderful. Voted up !

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author avatar Stella Mitchell
10th Jan 2013 (#)

You certainly know what you are talking about Peter . Extremely informative and interesting .
Bless you
Stella

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author avatar Sivaramakrishnan A
11th Jan 2013 (#)

Good to know where we stand in terms of law and what brought us thus far. Thank you Peter, for this detailed share - siva

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author avatar Judy Ellen
11th Jan 2013 (#)

I agree with all the comments! This is such an informative and excellent write up on the history of England's freedom! I will make sure I keep the link to this in my computer so that I can refer to it and reread it when I am feeling in better spirits. I want to make sure I keep all the great articles written by my fans in my computer because after the 25th article on our fans profile page we cannot view the remainder of the articles. I have been extremely depressed lately due to the death of my dog who was always right by my side for 12 and 1/2 years. Everywhere I look and in everything I do there are constant reminders of him! This loss has hit me like a ton of bricks!

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author avatar Peter B. Giblett
15th Jan 2013 (#)

Judy, I am currently researching other associated articles.

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author avatar writestuff
14th Jan 2013 (#)

An excellent overview of the impact of England's laws upon America's laws. The 2nd Amendment information regarding the rider is extremely informative.

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author avatar johnbee
16th Jan 2013 (#)

Interesting write, I will check it out.

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author avatar Ptrikha
29th Jan 2013 (#)

Quite informative article on origins of legal matters.

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