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. (1)
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). (2)
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. (3)
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.
The Common Law: Property, Torts, and Contracts
Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of estates in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract.
The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare.
Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in cases of first impression, a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court. (3)
- Legal Systems.” International Encyclopedia of the Social Sciences. 2008
- “Legal Systems.” International Encyclopedia of the Social Sciences. 1968
- “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
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