Common Law

Legal Systems

There are various definitions of the term legal system. A legal system as the term is generally used is an operating set of legal institutions, procedures and rules. For example, With regard to the United States, there would be one federal and fifty state legal systems. Legal order is a body of rules and institutions regulating a given society, some hold on to the view that a legal order may be forming or striving to form a coherent body of law.

Each law in fact constitutes a system: it has a vocabulary used to express concepts, its rules are arranged into categories, it has techniques for expressing rules and then interpreting them, it is linked to a view of the social order itself which determines the way in which the law is applied and shapes the very function of the law in that society.

Thus, the term legal system refers to the nature and content of the law generally, and the structures and methods whereby it is legislated upon, adjudicated upon and administered, within a given jurisdiction. A legal system may even govern a specific group of persons. Thus a person belonging to various groups could be subject to as many legal systems. For example, a Muslim student attending a university in Montreal might be subject to the rules and judicial institutions of Canada, the university and the Muslim faith. However, we will focus principally on State legal orders, rather than the personal laws of specific populations.

Legal Traditions or Families

Scholars have advanced diverse definitions of “legal traditions” or “legal families”. Three of them are as follows:

“There are three highly influential legal traditions in the contemporary world: civil law, common law and socialist law…A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations and crimes, although such rules will almost always be in some sense s reflection of that tradition. Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system and about the way law is or should be made applied, studied, perfected and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.”

“This grouping of laws into families, thereby establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world’s contemporary laws. There is not, however, an agreement as to which element should be considered in setting up these groups and, therefore, what different families should be recognized. Some writers base their classification on the law’s conceptual structure or on the theory of sources of law; others are of the view that these are technical differences of secondary importance, and emphasise as a more significant criteria either the social objective to be achieved with the help of the legal system or the place of law itself within the social order…there would appear to be three at least which occupy an uncontested place of prominence: the Romano- Germanic family, the Common Law family and the family of Socialist Law.”

Other legal traditions include Muslim law, Hindu law, Jewish law, laws of the Far East and African tribal laws.

A legal tradition is thus the general culture underlying a family of similar legal systems. Because most legal systems duplicated the law administered in another jurisdiction (e.g. former British colonies duplicated British law), major legal traditions tend to be associated with the original legal systems as it then existed rather than as it exist today.

Before proceeding into an in-depth analysis of the background and nature of the common law tradition, it is useful to have a general understanding of the two main legal families.

Civil law – Civil law may be defined as that legal tradition which has its origins in Roman law, as codified in the Corpus Juris Civilis of Justinian, and subsequently developed in Continental Europe and around the world. Civil law eventually divided into two streams: the codified Roman law (as seen in the French Civil Code of 1804 and its progeny and imitators, Continental Europe and Quebec being examples); and the uncodified Roman law (as seen in Scotland and South Africa). Civil law is highly systematized and structured and relies on declarations of broad general principles, often ignoring the details.

Common law – Common law is the legal tradition which evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which the courts have adjudicated. The common law is usually much more detailed in its prescriptions than civil law. Common law is the foundation of private law, not only for England, Wales and Ireland, but also in 49 U.S states, 9 Canadian provinces and most countries which were first received as colonies of the British Empire.

Statutory law is basic to both common and civil law. In common law jurisdictions, most rules are found in the jurisprudence and statutes complete them. In civil law jurisdictions, the important principles are stated in the code, while the statutes complete them.


Background and Nature of the Common Law

Extracted from Origins of the Common law, by Arthur R. Hogue (1966)

The brief working definition of the common law can simply be called that body of rules prescribing social conduct which was justiciable in the royal courts of England. A fuller statement may provide a better understanding of common law in the middle ages and in later centuries as well. S. B. Chrimes, a modern British historian, has remarked on the unfortunate confusion in British historical studies emerging from a deeply ingrained reluctance to make definitions. Definitions are particularly helpful for the history of the common law. Certain terms, such as “trial by jury” or “judicial precedents”, appear in 13th century materials and also on 20th century materials, but with very different meanings. Definitions may indicate the proper sources of common law, put them in clearer light, and uncover elements which have given the English legal system its distinctive character.

What the Common Law Is Not

The common law is not a written code. It is unlike the civil law of Rome as set forth in Justinian’s Corpus Juris Civilis, which for the Middle Ages in Western Europe was the great example of written law. The principles of common law have always eluded complete embodiment in any code or collection of writings. Judicial decisions recorded on the plea rolls of common law courts, declaratory statutes, and learned treatises on the common law may all express the principles of the common law, but these writings never comprise its totality. The modern continental jurist, trained in a system of written law, is disappointed by the precarious “certainty” of statutes in Great Britain, especially those of the middle Ages. Professor Henri Levy-Ullmann, a specialist in comparative law, has pointed with dismay at the calm admission of the eminent English historians, Sir W.S. Holdsworth and Percy H. Winfield, that English law has never known an officially authentic collection of the Statutes. Professor Levy-Ullmann concludes his own discussion of the growth of English statutes by saying that never at any period in the development of her legal tradition has England been” a country of written law.” Common law principles can be expressed in various ways. The principle that no man ought to be illegally deprived of his liberty may be expressed in a judicial decision, in a parliamentary statute, or in a learned treatise on the writ of Habeas Corpus. Writings will merely reveal the principle. The principle can exist, without writing, in the form of a generally accepted tradition.

Second, the common law is not the law of special groups or interests. Consequently, it is not to be identified with rules of canon law, particularly those which touch churchmen within the ecclesiastical hierarchy.

Third, the common law, properly so called, is not local custom. It is not ordinarily spoken of as usage of a locality or territory such as the shire of Kent, the classic example, which was permitted to enjoy until 1926 its own peculiar rules of inheritance by gavelkind. Moreover, the common law is not to be identified with rules of law administered by baronial, manorial or borough courts. Common law rules are general rules; whatever “smacks of a specialty” is not common law.

Fourth, the common law is not the body of rules enforced in Chancery courts; that is, common law is not to be identified with what is now called equity. The distinction between common law and equity is technical and has special meaning for jurists, but it could not arise until the late 14th century, where Chancery began to exercise an independent jurisdiction. In the 13th century the modern distinction between law and equity would have been incomprehensible, because the Chancery of the 13th century was simply the Royal secretariat, and the chancellor was its head. In the 13th century, the chancellor’s staff issued writs, legal orders initiating legal action, but the Chancery did not then try issues between litigants. The common law was growing rapidly, and if Bracton represents the thinking of royal judges, the courts were then prepared to apply new remedies as they were needed. As Bracton remarked, it pertains to the king to apply a competent remedy for the curbing of any wrong. In the time of Bracton, the common law was equitable. So long as those who administered the common law were prepared to create and apply competent remedies, the common law courts required no supplemental jurisdiction. The mysterious hardening of common law procedures at the close of the 13th century, perhaps due to the lack of confident invention and initiative, forced the development of other means of rendering justice in new and difficult cases and ultimately created the division between common law and equity courts, which endured until the reorganization of the English Courts by the Judicature Acts 1873 and 1875.


What the common law is

Negative statements have a value, but they fail here to suggest the full distinctive character of the common law; for that some positive elements are needed.

The common law is a body of general rules prescribing social conduct. It applies throughout the realm, save in those special jurisdictions where a recognized local custom or “liberty” is recognized by the royal courts. The residents of London, for example, kept alive for centuries their own body of peculiar law and custom, confirmed by William the Conqueror, and they were inbued with “an acute sense of the personality of their city.”

Second, the general rules of common law are enforced and applied by the royal courts. To speak of royal courts raises, of course, the whole question of the relation of the Crown to the administration of justice in any English court, and by the end of the 13th century the treatise called Fleta indicated that the Crown asserted a general responsibility for the judicial work of every secular court in the land. But the royal courts which are most intimately associated with the common law and which are, in fact, usually designated as common law courts are seven:
1) General Eyres
2) Common Pleas
3) King’s Bench
4) Exquecher
5) Commissons of Assize
6) Oyer and Terminer
7) Goal Delivery.

Third, the common law develops its principles from grounds of decisions in actual legal controversies.

Fourth, the common law is marked by its extensive use of the jury to provide the court with facts necessary for the decision of the case. In the 12th century and later, the jurors were chosen for their knowledge of the facts of the case; presumably their collective unanimous statement, or verdict, would contain information about the facts. It remained for the courts to apply the proper rules of law to the facts as the jury had established them. Of course the role of the jury in the 21st century has changed vastly.

Fifth, the common law is marked by a doctrine of the supremacy of law. Perhaps the ideal of the rule of law was more widely accepted in the medieval than in the modern world, but it still survives. The doctrine of the supremacy of law implies that all agencies of government must act upon established principles; even the highest bodies and officials are not permitted to act upon arbitrary will or caprice. The supremacy of law means that all acts of the government are subject to examination in courts, which are compelled in their turn to follow established procedures, “due process”, and to reach decisions guided not by whim but by generally accepted principles and sound reason.

These five elements suggest a positive definition: the common law is a body of general rules prescribing social conduct, enforced by the ordinary royal courts, and characterized by the development of its own principles in actual legal controversies, by the procedure of the jury trial, and by the doctrine of the supremacy of law.


Various differences in sources, concepts and style between the Civil and the Common law

A major difference between the civil law and common law is that priority in civil law is given to doctrine (including the codifiers’ reports) over jurisprudence; while the opposite is true in common law. The difference in priority can be explained by the role of the legislator in both traditions. French civil law adopts Montesquiue’s theory of separation of powers, whereby the function of the legislator is to legislate, and the function of the courts is to apply the law. Common law, on the other hand, finds in judge made precedent the core of its law.

The civil law doctrine’s function is “to draw from this disorganized mass (cases, books and legal dictionaries) the rules and principles which will clarify and purge the subject of impure elements, and thus provide both the practice and the courts with a guide for the solution of particular cases in the future. The common law doctrine’s function is more modest: authors are encouraged to distinguish cases that would appear incompatible to a civilest, and to extract from these specific rules.

The common law author focuses on fact patterns. He analyses cases presenting similar but not identical facts, extracting from the specific rules, and then, through deduction, determines the often very narrow scope of each rule, and sometimes proposes new rules to cover facts that have not yet presented themselves. The civilest focuses on legal principles. He traces their history, identifies their function, determines their domain of application, and explains their effects in terms of rights and obligations. At this stage, general and exceptional effects are deduced.

Common law jurisprudence sets out a new specific rule to a new specific set of facts and provides the principal source of law, while civil law jurisprudence applies general principles, and that jurisprudence is only a secondary source of law of explanation.

The English doctrine of stare decisis compels lower courts to follow decisions rendered in higher courts, hence establishing an order of priority of sources by “reason of authority”. Stare decisis is unknown to civil law, where judgments rendered by judges only enjoy “authority of reason”. This distinction makes sense. Confusion would result in the common law world if the core of the law was to differ from one court to another. This is not true in the civil law world, where general principles are embodied in national codes and statutes, and where the doctrine provides guidance in their interpretation, leaving the judges to the task of interpreting the law.

Civil law judgments are written in a more formalistic style than common law judgments. Civil law decisions are indeed shorter than common law decisions, and are separated into two parts- the motifs(reason) and the dispositif(order). This is because civil law judges are especially trained in special schools created for the purpose, while common law judges are appointed form among the ranks of practitioners, without special training. The method of writing judgments is also different. Common law judges extensively expose the facts, compare or distinguish them from the facts of previous cases, and decide (if not create) the specific legal rule relevant to the present facts. Civil law decisions first identify the legal principles that may be relevant, and then verify if the facts support their application (only the facts relevant to the advanced principle need to be stated).

Although statutes have the same paramountcy in both legal traditions, they differ in their functions. Civil law codes provide the core of law – general principles are systematically and exhaustively exposed in the codes and particular statutes complete them. Finally follows the jurisprudence. Common law statutes, on the other hand, complete case law, which latter contains the core of the law expressed through specific rules applying to the specific facts.

Civil law codes and statutes are concise, while common law statutes are precise. Indeed, civil law statutes provide no definitions, and state principles in broad, general phrases. Common law statutes provide detailed definitions, and each specific rule set out lengthy enumerations of specific applications or exceptions, provided by a catch-all phrase and followed by a demurrer such as “notwithstanding the generality of the foregoing”. The difference in style is linked to the function of the statutes. Civilian statutory general principle need not be explained, precisely because they are not read restrictively, but need to be stated concisely if the code is to be exhaustive. Common law statutory provisions need not be concise, because they only cover the specific part of the law to be reformed, but must be precise, because the common law courts restrict the rules to the specific facts they are intended to cover.

In civil law jurisdictions, the first step in interpreting an ambiguous law, according to Mazeaud, is to discover the intention of the legislator by examining the legislation as a whole. In common law jurisdictions, statutes are to be read and objectively construed according to certain rules standing by themselves. Two reasons can be advanced to explain this difference in interpretation. Firstly, common law statutes have to be read against a case law background, while civil law codes and statutes are the primary source of law under Montesquiue’s theory. Secondly, civil law judges are influenced by Rosseau’s theory that the State is the source of all rights under the social contract, while English judges favour Hobbes’ theory that the individual agreed to forfeit to the State only certain rights.

Common law judges, who are called to play an important role in deciding what the law is, are appointed from among experienced practicing lawyers. Civil law judges, whose main function is adjudicating, are appointed fresh from specialized schools.


Consequences – evolution of the law

While civil law principles, frozen into codes and are often rigid doctrine, are imposed on courts, most common law rules can be changed from time to time, subject to the doctrine of stare decisis. On one hand, the realities of modern life can be addressed in a more timely fashion through the common law, e.g. the salvage lien and the repairer’s lien. On the other hand, common law judges are sometimes hesitant to change a rule, where the consequences of doing so in relation to the whole of the law are not clear. Less timid to reform, civil law jurisdictions have sometimes hired learned authors to assist in effecting major legal changes.


What do we mean when we say that the English Legal System is a common law system?

Extracted from:
- Eddey & Darbyshire on the English Legal System (Penny Darbyshire,2001)
- Mixed Jurisdictions: Common law vs. Civil law (Prof. William Tetley, Q.C., 1994)

The English Legal System is a “common law system”. This means that many of our primary legal principles have been made and developed by judges in a case to case basis in what is called a system of precedent, when the lower courts are bound to follow principles established by the higher courts in previous cases. The term “common law” historically distinguished the law made by judges in the royal courts in Westminster and commonly applied in the whole of the UK, from the canon law or local systems of customary law which predominated until 1066 and existed beyond.

Judge made law is at least as important to us as law made by Parliament. For instance, there is no statute telling us that murder is a crime and defining it for us. It is a common law crime. The required guilty act, of causing death and the necessary degree of guilt, malice aforethought, have been prescribed and defined over centuries, by judges.

Another hall mark of the English Legal System and all common law systems is that basic trial procedure is essentially adversarial. This means that two parties are left to their own devices to prepare and present their cases unaided by the courts

Historically, certainly since 1215, jury trial was central to the English Legal System in both criminal and civil cases, although its use in civil cases is now rare and is confined to the most serious cases in the criminal courts. The need to argue cases before a jury has certainly shaped our rules of evidence, procedure and our substantive law and has meant that, historically, most of each argument has been presented to the court orally, though oral argument by the parties, oral examination and oral cross-examination of witnesses by the parties. Again, the emphasis on orality is rapidly disappearing with the admission of more and more written statements and documentary evidence in hard copy and electronically retrievable form.

Is the English Legal System still purely common law?

Some civilian principles now in the common law

Restitution is the new common law science which in recent years has spawned textbooks, law journals and law articles, lectures and conferences where none had existed before. Restitution is proof that the common law is not dead. Much of the modern law of restitution resembles the civil law principles of quasi-contract found for centuries in Scottish civil law. The revival or creation of restitution in English law intrigues civilians, particularly in codal countries. While the principle of unjust enrichment mow unites restitutionary claims at common law, unjust enrichment at civil law is but one of the quasi- contracts which triggers restitution. The common law used to restrict to specific forms of action which did not include a general restitutionary claim for unjust enrichment. The law of restitution therefore developed mainly through the action indebitas assumpsit under implied contract theory. It is interesting to note that today the three basic requirements of unjustified enrichment under both common and civil law are: enrichment by the receipt of a benefit, which this benefit is gained at the plaintiff’s expense and a lack of a legal cause.

Before Donoghue v. Stevenson, there was no general duty of care at common law. There were many tort causes of action, and the tort of negligence covered only certain special duties. Civil law, on the contrary, always recognized the general obligation not to act unreasonably in situation not governed by contract. Donoghue v. Stevenson created, amongst the special duties of acre already sanctioned by the action in negligence, a general duty of care similar to that of civil law: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

In civil law, it is not sufficient that contractual damages be the immediate and direct consequence of the non- performance, they must have been foreseen or foreseeable at the time that the obligation was contracted unless there was gross or intentional fault. In 1854, in Hadley v. Baxendale, citing Poithier, the French authority, the court adopted the rule that, besides those damages naturally arising from the breach, consequential damages include such damage as “ may reasonably supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” If there are special circumstances, they must be communicated and thus known to the parties.

In civil law, the general principle of restitution in integram entails that pre-judgment interests be granted as a loss of profits. Interest is even payable as of right when the debtor has delayed in performing an obligation to pay a sum of money, and is calculated from the date the obligation was due. Pre-judgment interests were gradually introduced in common law. Lord Tenterden’s Act opened the door slightly in 1833- the court was granted discretion to award interest for the debts of sums of money. The Law Reform (Miscellaneous Provisions) Act1937 and later S 35A Supreme Court Act 1981, finally confirmed the discretionary powers of the court to award interests “at such rate that it thinks fit or as the rules may provide.” The Admiralty court had already adopted the civil law rule that interest was always due to the obligee when payment was not made in time.

Common law is more adversarial, while civil law is more inquisitorial, when it comes to proving the substance of foreign law, a question of fact arising in a choice of law or recognition of foreign law situation. At common law, foreign law was proven by the testimony of qualified expert witnesses, who were summoned to court and subject to examination as to both their qualifications as experts and their knowledge and interpretation of the foreign law in question. In civil law jurisdictions, foreign laws needed usually be proven only by the production of a certificate, prepared by a diplomat of the relevant state or expert in the foreign law concerned. Today the UK has softened its rules of proof of foreign laws. Pursuant to S 4(1) Civil Evidence Act 1972, any person suitably qualified by virtue of his knowledge or experience is a competent expert. Moreover, the Contracts (Applicable law) Act 1990 implementing the Rome convention 1980 now permits judicial notice in ascertaining contractual obligations.

While at common law contributory negligence has always been a complete bar to an action in tort, civil law has always dealt with this issue as a mere question of causation, thereby apportioning liability according to the gravity of the concurrent faults. Moreover the common law developed the “last opportunity rule” in order to avoid triggering the contributory negligence rule against an otherwise faulty claimant. By way of statute, most common law jurisdictions have now limited, if not abolished, the contributory negligence rule, and adopted the more equitable “proportionate fault” rule.

Common law and civil law define marine insurance in different terms. Common law speaks of an undertaking to indemnify “marine losses, that is to say, the losses incident to marine adventure.” Civil law is concerned instead with the guarantee of “risks in respect of a maritime operation.” Despite this different wording, however, common law marine policies cover risks interests as well as property rights.

Changes in the English Legal System moving from common law to civil law procedural methods

It is often stated that one of the main features of the common law system is that the nature of the justice process and the trial is adversarial, with the proceedings and delivery of information largely controlled by the parties, and the judge having a neutral passive role. However, recent changes to civil procedure have introduced features in the civil litigation process which bears great resemblance to the processes in the inquisitorial civil law system.

Extracted from: Adversarial and Inquisitorial Models of Civil Procedure by J.A. Jolowicz, (ICLQ, 2003)

“…I turn now to some basic changes that I believe spell such evisceration of the basic notions of the adversary system as will lead to its effective demise in this country.

The changes in English procedural law that is important for present purposes fall into three groups. First, there are those that have given us the informed judge. Secondly, there are those- principally to be found in the new Civil Procedure Rules (CPR) - that substantially increase the powers of the judge. Thirdly, there are those that are intended to keep out of the courts as many as possible of the disputes which may prove susceptible to resolution by means other than litigation.

In the first group we have the virtual abolition, for civil cases, of the rule against hearsay evidence. This is important because it allows the use in evidence of a variety of documents whose disclosure does not have to await trial. Next, we have the greatly enlarged use of written experts’ reports, we have the exchange of written witness statements, and we have skeleton arguments….There was originally no obligation on the judge to read these documents before the trial, though “pre-reading” was encouraged, but on the introduction of case management judicial reading of the documents became essential. The CPR stress the need for the court to be well informed from the inception of the action, and make appropriate provisions to the end…It was essentially this development that led to the replacement of the judge who remains largely ignorant of the case he is to try until the trial begins, to a judge who knows in advance, and is expected to know, a great deal about all aspects of the case.

The second group consists of the various rules that provide for a substantial increase in the judge’s powers of control of the case at the expense of those parties. Under the CPR the judge can even go so far as to dispose summarily of a case, not only on application but also on his own initiative, if he considers that the claim or defense has “no real prospects of success.” The judge also has the power to control evidence, which he may do by giving directions on issues on which he requires evidence, on the nature of the evidence that he requires to determine those issues and on the way in which the evidence is to be placed before the courts. This manifestly runs counter to the freedom of the parties to present their cases as they wish- which is inherent in the classic adversary system.

In the third group we have the increased and strengthened devices for persuading the parties to resolve their disputes outside the courts. Part 36 of the CPR enables claimants as well as defendants to make offers of settlement in a form having implications for the settlement of costs. Alternative dispute resolution is encouraged to the extent that a stay can be ordered to enable the parties to resort to ADR. A principal object of the pre-action protocols and, indeed, of case management generally is to assist and encourage settlement at the earliest possible stage.

…It has become clear that litigation is no longer the preferred method of dispute resolution, and that being so, there is no longer any reason for dogged adherence to the adversary system, a system which is particularly well suited to dispute resolution, but less so to the production of “correct” decisions….What, then, is a correct decision? The nearest thing to a correct decision is, therefore, one that is reached by a judge who has at his disposal all the information that he considers necessary about the facts and the law. Distasteful though it may sound to the traditional common lawyer, we have a procedure that is further along the line towards the inquisitorial than is the traditional adversary system.

Most significant in bringing an end to the adversary system is the advent of the informed judge…, now any judge who is so minded can use his knowledge of the case and the powers given to him for the purpose of case management to ensure that he gets the information he needs to create a real prospect that the decision will be based on the nearest approximation of the truth. It will take time for the change in the character of civil litigation that has occurred in this country to be fully appreciated, but when it is, the adversary system as we know it will effectively have been replaced by some thing closer to what common lawyers are all too prone to dismiss as inquisitorial.”