The Birth of the English Common Law, 2nd ed. Cambridge University Press 1973, 1988, R.C. van Caenegem
In The Birth of the English Common Law (2nd ed) van Caenegem by a thorough analysis of primary sources produces a coherent and fascinating exposition of the birth of the common law. The author explores centuries old controversies; did the common law arrive with the Conqueror in 1066 or was there a nascent common law in operation in pre-conquest England? Did the jury pre-date the conquest? The work is replete with fascinating insights concerning medieval society of general interest. The notion that the ordeal (trial by water or fire), and battle were surpassed as modes of proof because the royal courts were able to offer jury verdicts that were considered more reliable is just one example. Promotion of the jury in the royal courts of the Norman rulers accompanied the development of a centralized judiciary. The common law did not so much arrive with William, but flourished in Norman courts because it surpassed existing methods and found acceptance by the English. The loss of the continental Crown possessions saw the common law thrive in England alone. Van Caenegem, in a measured way, paying due attention to those of a different mind, makes a fascinating case that England did not make the common law. Rather, the common law made England.
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