Common Law Systems
Common law systems can be found in many nations that were former colonies or territories of England. The common law originated with the unification of England and the institutional stability provided by William the Conqueror (c. 1027–1087) after 1066. In 1215 King John (1167–1216) elevated the importance of the common law at Runnymede when he signed the Magna Carta. The Magna Carta freed the church, localized the court system, and codified the basic principles of the common law. By the sixteenth century, the common law system had supplanted the civil law system in England, and over time it would become more reliable as a consistent record of case law for judges and lawyers developed.
An important aspect of the common law is the role of precedent or the principle of stare decisis (“let that stand which has been stated”). The common law represents the law as expressed by judges in the form of judicial decisions based on precedent rather than statutes. These judicial decisions, if issued by the highest court in a jurisdiction, are binding on all other lower courts within that same jurisdiction. To ensure predictability in the law, high courts are expected not to overturn their own precedents in the absence of strong justification. Though new rules are adopted from time to time and judicial decisions can be overturned, these new rules or decisions also become binding precedents, thus restoring certainty to the law.
In the early twenty-first century, every state in the United States, except Louisiana, utilizes the common law system. Most state statutes provide that the common law, equity, and statutes in effect in England in 1603 be deemed part of the law of the jurisdiction. The common law system also constitutes the basis of the legal systems of Canada (except for Quebec), Australia, Hong Kong, India, Malaysia, New Zealand, and South Africa, among other nations. Each of these common law jurisdictions recognizes the importance of the adversarial system and the fundamental principles of law that have been adopted over the centuries by way of custom and precedent.
Legal Systems.” International Encyclopedia of the Social Sciences. 2008
The term “common law” is used in a number of different senses. In medieval English law it denoted that law which was administered by the king’s courts and which was, in principle at least, common to the whole realm. The common law, in this sense, was to be distinguished from the law administered in the local, county courts or in the feudal, barons’ courts, which tended to be specialized or particularized by region; and it was also to be distinguished from autonomous bodies of law, like the law merchant, which were peculiar to certain classes of persons.
In another sense, however, the common law is set in opposition to statute law. The common law is rendered concrete and explicit in, and derives its juridical efficacy from, decisions of courts; whereas statute law, or legislation, is an emanation of the will of the sovereign parliament or legislature. In this same specific sense, the common law is also distinguished from codified law or code law (civil law). The common law is conceived of as a body of principles originally derived from customs which are either reflected in the judgments of the highest national courts or else contained in piecemeal statutes passed ad hoc to correct or extend those same decisions. Thus it is opposed to those systems of law which have been reduced to more or less permanent written form and organization through a single comprehensive piece of legislation or codification.
Insofar as the English-speaking countries have generally been able to resist comprehensive codification of their laws, we are led into the broadest and most popular meaning of the term common law—the law of the English-speaking countries as opposed to the (generally codified) civil law of continental Europe and of those countries in Latin America, Asia, and Africa that were politically influenced by, and whose legal systems were shaped by, continental Europe.
In yet another sense, the common law is opposed to equity—that body of law, distinct from the common law, which was administered by the lord chancellor, as “keeper of the king’s conscience,’” through the chancery courts, in order to correct or ameliorate the harshness or rigidities of the common law as administered by the regular courts. Equity started as a series of principles and rules, reflecting considerations of fairness and natural justice, which were, in medieval times, of such flexibility and range as to warrant the latterday charge that equity was “as long as the chancellor’s foot.” By the early nineteenth century, however, it had jelled into a fairly rigid system of precedents and judicial authorities distinguishable from the common law mainly in that it was administered by a separate judicial hierarchy, the chancery courts. The Judicature Acts of 1873—1875, which effected a wholesale organization of the English judicial structure, abolished the special chancery courts, and equity was formally fused with the common law into a single system of precedents administered by one system of courts.
Last, the term common law is sometimes used to denote the private law, i.e., that body of law governing relationships of private citizens inter se in which the public or state interests are normally minimal or else only peripheral (for example, the law of contracts, torts, personal property), in contradistinction to constitutional law and public law generally (for example, administrative law, labor law, antitrust law) in which the public interests are normally pervasive. This distinction is ceasing to be really meaningful in modern terms, as the state increasingly intrudes into areas of law originally considered as involving personal interests only.
Diffusion of the common law It is true of the common law that English settlers proceeding overseas to found new colonies carry with them the law of England existing at the time of the first settlement, except insofar as that law may be obviously inapplicable to the new area. For example, the old common law rule of “ancient lights” might be considered inappropriate or unnecessary in newly settled areas without any tall buildings and therefore inapplicable and not automatically “received” as law on settlement. Through this device, whereby new content and meaning were poured into old formulas, the common law became the basic law of the United States and of those Commonwealth countries founded by settlement. In the case of those parts of the British colonial empire acquired by military conquest and already having a local population (indigenous people or non-British settlers), different principles were applied, usually involving the maintenance of the local private law, as, for example, in the case of India, South Africa, and the Province of Quebec.
Once the English common law was “received” into an overseas colony, it continued in force until such time as it was repealed, altered, modified, or added to by appropriate constitutional authority— whether by the British Parliament as the supreme imperial legislative authority, or by the Privy Council sitting in Westminster as the final appellate tribunal for the overseas empire, or by the colonial legislature and colonial courts acting within their respective jurisdictional limits and competence and subject to appropriate control by imperial constitutional agencies. These imperial controls disappeared, in the case of the American colonies, with the Declaration of Independence; and they virtually disappeared in the case of the self-governing Commonwealth countries with developing constitutional custom and convention. This was partly confirmed and recognized in statutory form with the Statute of Westminster (1931), a British statute, although some members of the Commonwealth (Australia and New Zealand, for example) still retain, by their choice, an appeal from their courts to the Privy Council. Insofar as the common law remains the basic private law of the various English-speaking countries today, it is by those countries’ own decisions to maintain and even extend their historical legal inheritance. For these purposes it becomes necessary to consider the juridical institutions and techniques whereby the common law is applied and developed in these countries.
Institutions and techniques The key element in the continued viability of the common law today is undoubtedly the existence of the doctrine of precedent. This doctrine establishes, first, the obligation of court jurisdictions to adhere to and apply the decisions of tribunals that are superior to them in the judicial hierarchy; and, second, the principle that the highest court in the land is bound by its own decisions. The first aspect seems obvious enough, since it is a natural consequence of the pyramidal structure of court organization in England and has the practical utility of ensuring uniformity and predictability of decisions by inferior and intermediate tribunals. The second aspect— the principle of stare decisis in the strict sense— although often regarded as a truism of common law jurisprudence, was actually formulated as a binding principle of the English common law only in 1898, in the London Tramways case decision. Since that time, however, it has been one of the major preoccupations of common law legal theory.
Quite apart from the issue of whether courts ought to be bound by past decisions, the “legal realist” school, which was very influential in American law schools in the period between the two world wars, raised the issue of whether courts, as a matter of fact, did bind themselves by past decisions. Led by such brilliant young scholars as Judge Jerome Frank and Karl Llewellyn in the early 1930s, the legal realists pointed to the substantial devices or stratagems available to courts to mitigate the effects of unwanted judicial decisions from earlier eras. Among these devices the legal realists identified the practice of “distinguishing” prior cases: focusing on assertedly new or different fact situations in the case before the court, in contrast to the fact present in those earlier cases that established the now unwanted principles of law. The legal realists also pointed to the widespread judicial inclination toward “shading” of earlier decisions, that is, giving some more weight than others by categorizing them as the decisions of “strong courts” or by focusing on individual judicial opinions, separate and distinct from the official opinion of the court, in cases in which more than one judicial opinion is filed. These individual opinions could be special concurring opinions or even dissenting opinions in the case of “prestige” jurists like Oliver Wendell Holmes of the United States Supreme Court. Opinions of the intellectual caliber and clarity of Holmes’s great dissent in the Lochner case in 1905 became appeals to the future and were later expressly vindicated by United States Supreme Court majorities, as in West Coast Hotel Company v. Parrish Company (300 U.S. 379) in 1937.
It must be admitted that “distinguishing” prior decisions is immensely facilitated by the proliferation of individual opinion writing on final appellate tribunals in the common law world. Only the Privy Council, among these courts, still resolutely adheres to its practice of filing only a single per curiam opinion in each case.
The “distinguishing” of cases is also assisted by the plethora of separate common law jurisdictions of the present day, each turning out its own decisions. Consider the problem in the federal states of the English-speaking world. In the United States there are 50 autonomous private law jurisdictions; each is theoretically independent and separate from the other, and the supreme court of each state is the final appellate tribunal for cases arising there (except insofar as those cases also raise issues involving federal jurisdiction). Although the decisions of any one state supreme court are not, of course, binding on any other state, they may have a certain persuasive authority, and it is frequently possible to find lines of opposing decisions from different state supreme courts, thus opening up the way for a creative judicial choice—judicial policy making. Notwithstanding the 50 separate, and at times competing, state private law jurisdictions there are countervailing forces that point toward the unity of the common law in the United States. There is, first, the Restatement of the Law prepared by the American Law Institute (1953–1965). Although not “official,” it brought together the best experts available (law professors, judges, and lawyers) and soon achieved a quasi-official status. The Restatement tried to present the consensus of private law among the then 48 states and thus performed an important unifying function among the 48 jurisdictions. It still enjoys high respect in most state courts. Another important unifying factor is the existence of great “national” law schools (Yale, Harvard, Columbia, Chicago, etc.), which consciously avoid stressing the law of their own particular state and can thereby teach a genuinely “national” common law that can draw on the best principles of the jurisprudence of the 50 sepa-rate state systems.
Emphasis upon the “distinguishing” of cases on the facts directs attention to the crucial role of facts in contemporary common law decision making. It is not merely that the orthodox view of the principle of a case (or ratio decidendi) is the rule enunciated by the judge plus the material facts in the case (Goodhart 1931). It is also that, under the influence of legal realist teachings, courts, in accepting the desirability and inevitability of judicial policy making (or judicial legislation) at the final appellate level, have increasingly accepted the desirability of having an adequate factual record in aid of such judicial legislation. This new emphasis has perhaps received its fullest outlet in American jurisprudence in the so-called “Brandeis Brief” method of adducing constitutional facts to the notice of the United States Supreme Court; but it has also had its effects in the private law.
It is in American constitutional law, of course, that the direct and avowed departure from the principle of stare decisis has been most marked, prompting Judge Owen Roberts to comment ruefully, on the overruling of earlier United States Supreme Court decisions, that this trend to court flexibility tended to “bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only” (Smith v. Allwright, 321 U.S. 649, 1944).
The common law and social change The contemporary judicial disposition to depart from stare decisis —either by directly overruling past decisions or by “distinguishing” cases—emphasizes movement and growth in the positive law as the society in respect to which the positive law is to operate itself changes.
The American school of sociological jurisprudence, led by Roscoe Pound, was strongly influenced by the pragmatist teachings of William James and John Dewey. Sociological jurisprudence preached the necessary and proximate relationship, or symbiosis, between law and society—that is to say, the notion that the criteria for evaluating and appraising the positive law at any time must include (1) the extent to which that positive law in fact reflects the complex of interests pressed in society at that time, and (2) the extent to which the positive law has changed in measure with that society. The values to which a sophisticated legal system must give effect include both the interest in a reasonable stability of settled legal expectations and the interest in mobility and change in law, lest the positive law, if too unimaginatively and rigidly applied, should act as a brake on future social development.
The legal realists charged that in attempting to balance these two opposing principles the common law systems, certainly until the 1930s, overemphasized the interest in stability and predictability of legal relationships and forgot the maxim that “the life of the law has not been logic, but experience” (see, for example, the writings of Karl Llewellyn and Jerome Frank). The theories of most legal realists emphasized the law-making role of appellate judges. The recent emphasis on the more dynamic elements in law (see the work of Myres McDougal, Harold Lasswell, and others) represents, in addition, a return to an earlier common law philosophy, a philosophy which had, after all, so successfully transformed the common law from crude and unrefined custom, in the closed medieval society, into an instrument of social control amply suited to the resolution of conflicts and tensions in modern complex industrial civilization.
“Legal Systems.” International Encyclopedia of the Social Sciences. 1968
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.
Features of a common law system include:
There is not always a written constitution or codified laws;
Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation;
Extensive freedom of contract – few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied);
Generally, everything is permitted that is not expressly prohibited by law.
A common law system is generally less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers. Please go to Legislation and Regulation sections for more information on this.
There are few provisions implied into a contract under the common law system – it is therefore important to set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country.
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