Common law

Laws common to all England

Initially, the common law referred to the laws that were common to all the king's courts across England, the law which originates in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.^[2] 'Common law' in this sense is distinct from the system of laws admistered by the local folk courts of England's various shires and hundreds, where most legal disputes were solved prior to the Norman Conquest.^[2] Even after 1066, a variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.^[2]

Law and equity

As early as the 15th century, it became the practice that litigants, who felt they had been wronged by the common law courts, would petition the King for relief. Eventually, the Lord Chancellor became in charge of administering such relief to litigants, being regarded as the Keeper of the King's Conscience.^[19] The Lord Chancellor's jurisdiction later evolved into a court of law known as the Court of Chancery, which administered relief 'in equity' to litigants. As the courts of equity became more popular as a court of first instance, owing to the rigid rules of the common law courts, equity came to develop a system of legal doctrines separate from those in common law. In the 17th century, it was established that where the rules of equity and common law conflicted, equity would prevail.^[20]

In the late 19th century, the separate judicial systems of common law and equitable courts in England were fused, although the rules of equity were retained.^[21] In 1937, the new Federal Rules of Civil Procedure in the United States combined common law and equitable actions into one form of suit, the "civil action",^[22] with substantive distinctions between the two forms of law remaining.^[23] Some jurisdictions, particularly in the United States, retain separate legal and equitable court systems.^{[citation needed]}

Financial and economic research

Owing to the nature of precedent in common law, the commercial strengths of common law systems include consistency, certainty and finality.^[38] Common-law judges, especially from the law and economics movement, also can exercise broader adjudicative discretion in ensuring economically efficient and commercially pragmatic outcomes.^[39][40][41] Research into law and finance has found that common law systems contribute significantly to the development of robust commercial systems and overall economic development.^[42] As such, common law jurisdictions, such as England and Wales, California,^[43] Delaware,^[44] New York City, Hong Kong, and Singapore, are often chosen as the forum of litigation as well as the choice of law used in commercial contracts, even when none of the parties or the agreement itself has any relation to these jurisdictions.^[45][46]

Reception, influence and development of English law

Former British colonies that have become independent vary in their reliance upon and reception of English law.^{[citation needed]} The majority of jurisdictions have implemented reception statutes that receive the historical English law, prior to independence, into their legal systems,^[47] in order to preserve legal continuity and retain the ability to draw upon an extensive and predictable body of law.^{[citation needed]} Post-independence jurisdictions, with the notable exception of the United States, also generally allowed litigants to appeal to the Privy Council of the United Kingdom as an apex court, but most of these jurisdictions have abolished such rights in favour of a national supreme court.^{[citation needed]}

The need to balance legal continuity and autochthonous independence has figured particularly in debates in the extent to which English law should remain recognised or influential in a new jurisdiction, including the question of whether rights of appeal to the Privy Council should be abolished.^{[citation needed]} Following the American Revolution, Thomas Jefferson, argued that the common law was a threat to the nation and that a civil code would be preferable as judges were not subject to the democratic political process.^{[48][better source needed]}

For several decades after independence, contemporaneous English law remained highly influential on American common law. For example, the decision in Byrne v Boadle (1863), which first applied the res ipsa loquitur doctrine, was followed in U.S. courts.^{[citation needed]} At the same time, the autochthonous development of common law in other jurisdictions, particularly Australia, Canada, Hong Kong, and Singapore, has also influenced the development of English law.^{[49][better source needed]}

History

Well into the 19th century, legal maxims played a role in common law adjudication as authoritative statements of the law.^{[citation needed]} Collections of legal maxims were popular in legal scholarship and education.^{[citation needed]} Contemporary judges generally discourage the use of legal maxims in litigation and do not find them binding or persuasive,^[67] although they are sometimes invoked by judges themselves as metaphors or statements of broad principle.^{[citation needed]} Instead, during the early twentieth century, legal scholars and judges, particularly in the United States, began to increasingly criticise the use of formalistic reasoning, instead advocating for greater consideration of public policy, fairness, social and commercial norms, and empirical evidence, including from the social sciences.^[68][69]

Statutory interpretation

Mechanisms

In England, judges have devised a number of rules as to how to deal with precedent decisions.^[70]

Legal reporting

In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to aslaw reports and yearbooks.^[50]

After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.^[48] The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874.^{[citation needed]} West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States.^{[citation needed]} Government publishers typically issue only decisions "in the raw", while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.^{[citation needed]}

There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.^[71]

Stare decisis

In the United Kingdom, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts, being the final court of appeal for all civil law cases and criminal law cases in all jurisdictions except for Scotland, where the High Court of Justiciary has this power instead. The Supreme Court also has an appellate jurisdiction on questions of law relating to reserved matters such as devolution and human rights.^{[citation needed]} From 1966 to 2009, this power lay with the House of Lords, as it declared in the Practice Statement of 1966.^[72]

In the United States, most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc or by a higher court.^[73] Other courts, for example, the Court of Appeals for the Federal Circuit (formerly known as Court of Customs and Patent Appeals) and the US Supreme Court, always sit en banc, and thus the later decision controls.^{[citation needed]}

Evidence and litigation

Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, criminal proceedings proceed under an inquisitorial system in which an examining magistrate serves two roles by first developing the evidence and arguments for one side and then the other during the investigation phase.^[74]

In contrast, in an adversarial system, on issues of fact, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented.^[75] On the other hand, on issues of law, common law courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them. The United States Supreme Court, in particular, regularly decides based on issues raised only in amicus briefs from non-parties.^[76][77]

Separation of powers

Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator.^[78][74]

Medieval English common law

King Henry II, the establisher of common law,^[83][84] had as his object the preservation of public order, but providing law and order was also extremely profitable – cases on forest use as well as fines and forfeitures generated large windfalls for the government.^[85][86] At the time, royal government centered on the Curia Regis (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of Parliament, the Star Chamber, and Privy Council, but it was Henry II who developed the practice of sending judges from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. As the administration of the eyres (a Norman French word for judicial circuit, originating from Latin iter) became more widespread, a law emerged that was 'common' to all of England, hence known as the 'common law'.^[86][87][88]

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law.^[70]

Scots law

Scotland developed a unique system that combined elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707, founded on the customary laws of the tribes residing there. Historically, Scottish common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent,^[89] and principles of natural justice and fairness have always played a role in Scots Law.^{[citation needed]} From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances.^{[citation needed]}

The United States (c. 17th century – 1776)

After Erie v. Tompkins, 304 U.S. 64, 78 (1938) overruled Joseph Storey's decision in Swift v. Tyson, the federal common law was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law.^[90] Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government.^[b] Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.^[91]

Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.^[c] Outside diversity jurisdiction and when there is no federal statute,^[d] post-Erie federal courts have continued to create causes of action.^[93] Justice Lewis Powell strongly objected to this practice in an influential dissent for the case Cannon v. University of Chicago.^[37]

British Raj (19th century – 1948)

The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj.^{[citation needed]}

Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.^[94] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.^[95] Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.^[96] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.^[97]

When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.^[98] After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India.^[99] It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.^{[100][verification needed]}

Common law pleading and its abolition in the early 20th century

For centuries, through to the 19th century, the common law acknowledged only specific forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into exactly one of them: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case (or trespass on the case), and ejectment.^[101] To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific legal terms and phrases that had been traditional for centuries. Under the old common law pleading standards, a suit by a pro se ("for oneself", without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.

One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.^[102] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.^[103] This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.^[104]

Contemporary United Kingdom common law

Scotland shares the Supreme Court with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK law of negligence is based on Donoghue v Stevenson, a case originating in Paisley, Scotland.

Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom (before October 2009, final appellate jurisdiction lay with the House of Lords).^[105]

Roman-Dutch law

Maritime law

International law

Civil law