The Roots of Our Legal System: The Foundation for Growth

England—Where It All Began

Depictions of English attorneys donning wigs and robes may make some chuckle. But, notwithstanding the odd English dress code, we have much more in common with our neighbors across the Atlantic than many appreciate. The legal systems we have all pledged to uphold are like sister systems, separated at birth.

When English settlers came to the United States at the beginning of the seventeenth century, they brought with them the common law and practices of the English system. Well, sort of. Lawyers were few and far between in the early colonies, and the colonists used their lay understanding of English law to create order. The colonies functioned under what some have called a crude form of governance (sometimes overtaken by religious ideals) until English law was forcibly instituted into the colonies in the eighteenth century. This resurgence of English law was one of the many attempts by England to reassert control over the distant colonies. Interestingly, while these attempts to reassert control clearly backfired and the colonies fought for their freedom, the common law system forced upon the colonies was never rebuked. The English common law system remained in place after the revolution and continues to this day. Although both English and American law have morphed over time to adapt to different environments, the root of each system (common law) is exactly the same—the sister systems merely grew up on opposite sides of the Atlantic.

Let’s take a look at the present-day impact of some of those English roots.

Happy 800th Birthday, Magna Carta

Magna Carta, the great charter, celebrated its 800th birthday this year. Legal scholars throughout the nation seized the opportunity of this historic anniversary to discuss the lasting impact of Magna Carta on the American legal system. Numerous books and articles treated us to illustrative glimpses into the “why” of many of our practices and procedures. For example, why do we have a right to travel? Magna Carta. Why do we have a right to trial by jury? Magna Carta. What about due process, habeas corpus? You guessed it, Magna Carta.

Did you know that Magna Carta is more present in American constitutional law than in the United Kingdom? Fancy that. Some old English document with a funny-sounding name affects us, American legal practitioners, more than our sister-practitioners in wigs and robes. Over time, our brethren across the Atlantic overruled and mooted various provisions of Magna Carta. Recent scholarly work reflects that only three or four of Magna Carta’s sixty-three chapters remain in the United Kingdom’s statutes. On the other hand, Magna Carta was a powerful tool during the American Revolution and, as such, became an integral part of our nation’s founding documents. Numerous provisions in the US Constitution and several state constitutions can be traced to Magna Carta and the rights preserved therein. Magna Carta, thus, works as both a source for constitutionally guaranteed rights and privileges in America and statutory schemes in the United Kingdom. It is the common foundation of both legal systems that, over time, grew in different directions. Why? Because we adapted to different environments and developed different traditions, values, and more.

Inns of Court

One tradition that has remained constant in both the English and American legal systems is the expectation of professionalism and collegiality amongst members of the bar. One illustration of our profession’s collegial spirit is the concept of an Inn of Court. Inns of Court developed in England in the late fourteenth century as the central educational facilities for would-be barristers. Currently, England boasts four prestigious Inns of Court: The Honourable Society of Lincoln’s Inn, The Honourable Society of the Inner Temple, The Honourable Society of the Middle Temple, and The Honourable Society of Gray’s Inn. Lest you think these Inns are a vestige of English law, early Americans would travel across the Atlantic to study at one of these Inns. In fact, seven of the delegates to our Constitutional Convention of 1787 were members of the Middle Temple. While the American legal education framework ultimately grew into a formal degree program, the Inn of Court mentality was not forgotten. The aspiration of collegiality between attorneys continued and, after a discussion in the 1970s, the concept of American Inns of Court began. The first American Inn of Court was founded in 1980 and today, a mere thirty-five years later, there are nearly 400 sponsored Inns in forty-eight states, the District of Columbia, Guam, and Tokyo. Those Inns have more than 30,000 active members. The Inns foster collegiality amongst members of the bar and coordinate professional events to provide mentoring and training to legal practitioners at all levels.

Oh Mentor, My Mentor

In addition to collegiality, most English and American legal practitioners see the merit in mentoring—to create competent and prepared young lawyers and help them grow throughout their legal career. In England, a would-be solicitor or barrister can only practice law after a mandatory period of mentoring and training from an experienced practitioner or pupillage group.

Despite the formal instructional method of legal training in America, mentoring (the original legal training) is still important. While not always as formal as the system in England, most American legal practitioners go through some sort of mentoring or hands-on training experience prior to undertaking true legal work. For those who clerk after graduating, their judges are often the first formal mentor. The purpose of a clerkship—while at its simplest, to assist a judicial officer—is truly mentoring and training. Young attorneys who join a law firm as associates typically are also trained before having direct contact with clients and bringing in clientele of their own. Sometimes they are mentored by partners or directors in their firm; sometimes they find mentors in prior legal professors or other connections they have made through bar associations or Inns of Court. Even for those who “put out a shingle” to start their own firm, mentoring is crucial to develop the necessary skills for effective client service.

Some states have stayed closer to England’s mentoring ways than others. In Delaware, for example, before anyone can be admitted to the bar, the applicant must find (or request appointment of) a preceptor—a member of the Delaware bar who has been admitted for more than ten years and who is willing and able to attest to the applicant’s fitness for admission to the profession. The preceptor will oversee the applicant’s required five-month, full-time clerkship and the completion of a Law Clerk Schedule of Legal Assignments. The schedule currently requires the applicant to complete 26 assignments ranging from attending hearings in Delaware’s courts and administrative agencies to reviewing probated estates and corporate formation documents. Only after an applicant has passed the state bar exam, completed the five-month clerkship, completed the schedule, been recommended for admission by his or her preceptor, and passed a character and fitness inquiry, will she be admitted to the Delaware bar and allowed to serve the community. This process, although truncated, is akin to the mentoring and practical training of England’s system and accomplishes the same goal—ensuring that the public is represented by qualified legal practitioners who are well-versed in the jurisdiction’s legal system.

Ask Why and Listen

Our legal system and the laws, traditions, and requirements comprising it are here for a reason. The “why” very well may be “it’s always been done this way,” but the true reason is much deeper. The roots of our legal system laid the framework for growth. Growth does not always require change. Growth does not mean forgetting or erasing the past. Growth means building on those customs that make us better lawyers and better advocates for our clients. Millennials, I implore you to remember the past as you forge into the future. Take the lessons from our forefathers and continue the growth they started. Don’t stop asking “why,” and don’t forget to listen to the answer. Acknowledge and appreciate our legal roots and help them to grow.