We keep hearing about “the common law”, but what exactly is it? In this episode, we look at three separate meanings.
First, the common law describes a whole legal system, such as Australia, England, the United States and Canada. This contrasts those jurisdictions with civil law, religious law and customary law systems. In practice, there are many countries which are hybrids of two or more systems.
Second, the common law is in contrast to something called Equity. This is also law built up from cases but has a different internal logic or morality. So, in common law systems (meaning no 1) we have both the common law (meaning no 2) and Equity (which is the focus of the next episode.
Third, the common law is in contrast to statute law made by parliaments. Where a constitutionally valid statute conflicts with case law, the statute prevails.
There are arguments either way about the benefits of common law systems over civil law systems. It is also possible that technologies such as artificial intelligence and expert reasoning systems will pose a challenge to both, and that a new approach to law will emerge based on detailed predictions of the consequences of favouring one rule against an alternative rule.
Technology may yet challenge our notions of Justice.
TRANSCRIPT
So far in these Law in Context podcasts we have often referred to “the common law”. The adversarial system, the role of the judge and jury, and the ethics of lawyers all take their shape and content from the common law.
But what actually is it?
Stephen Parker
As we’ll see, it’s confusing enough anyway, but there are three separate meanings.
- First, the common law is a kind of legal system, with its own kind of reasoning. In this way, we distinguish common law systems from civil law systems.
- Second, within such a system, the common law is contrasted with something called Equity. So a common law system contains both the common law and the law of equity.
- And, third, lawyers talk about common law to contrast it with statute law, such as Acts of Parliament. The common law is case law, made by judges, and not statutes, made by parliamentarians.
So, in this masterclass of how to lose an audience even in the introduction to a podcast, let’s go through these 3 different meanings in a little more detail.
Stephen Bottomley
First, the common law as a system of law applies in many countries which were colonised by England and then decided to keep it, or “receive” it, after gaining independence. About one-third of the world’s population lives in a common law system or a hybrid one where the common law is a dominant influence.
Stephen Parker
Reasonably pure versions are found in England and Wales, Australia, New Zealand, the USA and Canada. But even in the US, Louisiana is not a common law state, because of its French colonial origins, and that is also true in the Canadian province of Quebec.
I studied law about 100 miles from the Scottish border and learned nothing about Scottish law at all, which is a hybrid jurisdiction. For centuries it had operated on Roman law principles, and it was not until the Act of Union with England in 1707 that common law approaches began to enter there.
Stephen Bottomley
The common law as a system began after the Norman invasion of England in 1066. Henry II in about 1154 brought it all together, so that the same law was “common” across the country and applied in all of the King’s courts.
A famous English jurist in the 1700s, William Blackstone, argued that common law was derived from the customs of the people that had existed since antiquity. The law, he said, was pre-existing, and the judge’s role was to divine it. This is the declaratory theory of common law; the answers are all in there somewhere but a judge needs to find them.
Stephen Parker
Finding out the law in a common law system, especially on a topic where there is little or no statute, is actually very complex, and this possibly adds to the sense of craft mysticism; that the initiated have particular skills and knowledge not available to outsiders. Which of course reinforces the central role of lawyers in the system.
Stephen Bottomley
Essentially the common lawyer tries to find the rule that applies to the current situation by looking at previous cases – precedents – and then argues that that rule applies to their case, if it suits them, or should be distinguished from their case, if it doesn’t.
Stephen Parker
But to find the rule you have to look at the reasoning in those previous cases. The nugget you are looking for in a previous decision is its rationale, usually known as its ratio decidendi; the reason for deciding.
Stephen Bottomley
Extracting a ratio decidendi can be like pulling teeth. You might slog through 3 or more very long judgements in a single case, with each judge wanting to say it in their own way, only to find that all three reach the same decision but by different routes, leaving the ratio decidendi still unclear.
Stephen Parker
Even when you think you have extracted the central rule from a previous case you then have to work out whether that rule is binding in your situation now.
Stephen Bottomley
The doctrine of precedent essentially means that decisions of superior courts, such as final and other courts of appeal, are binding on lower courts in that jurisdiction. But if you don’t live in that jurisdiction – you might be just over a state border, for example – the decision will be influential rather than binding. But how influential you won’t know until you try it out in court.
Stephen Parker
All this is quite different in civil law systems, such as in France, Germany, Scandinavia and Switzerland and the countries that have adopted their approach. Their codes are intended to be comprehensive. Each judge interprets the code and applies it to the case in front of them, but the decision of one judge is not usually binding on another judge. In theory they all start interpreting afresh.
Stephen Bottomley
The common law is built upwards from the ratio decidendi of numerous cases. The civil law is applied downwards, from the code. Common law reasoning is inductive and civil law reason is deductive. We’ll evaluate the two shortly, but let’s quickly describe the 2nd and 3rd meanings of common law that we outlined at the beginning.
Stephen Parker
The common law can be contrasted with something called Equity. We are devoting the next episode to Equity but let’s say for now that Equity began in a court presided over by the Lord Chancellor, who was the keeper of the King’s Seal, rather than a court of common law which was nominally under the King himself.
Equity developed to bind people’s conscience and to knock the hard edges off common law rules. It’s still alive and kicking today, as we’ll see, although common law rules and equitable principles are now applied in the same courts as different thought systems, with equity usually prevailing.
Stephen Bottomley
The third meaning of common law is in contrast with statute law. As we saw in episode 3, a statute prevails over case law, assuming the statute is constitutionally valid. More and more, statutes in common law systems do attempt to codify the whole law on a subject, or to replace outmoded aspects of the common law with rules more suited to the contemporary world. In parts of Australia, for example, this is the case in criminal law. But even here, the courts interpret these codes, and the common law method gets cracking again.
Stephen Parker
And to make your head spin a bit further, a court, such as the High Court of Australia or the Supreme Court of the United States, might find a statute unconstitutional and strike it down; and they might use earlier cases to come to that conclusion.
Stephen Bottomley
Well Steve, this is all very interesting, or not, but a reasonable question is why in this day and age of widespread literacy, searchable data bases of all court decisions and all statutes, and increasingly with artificial intelligence and computer-based reasoning systems suggesting answers, why do we persist with a common law approach? Why not finally codify everything and be done with it?
Stephen Parker
Maybe this is slowly happening, with the expansion of statute law. In our episode on the adversarial system we ended with the lame conclusion that it seems to fit some kinds of societies and the inquisitorial system seems to fit other kinds. You could say the same about the common law and civil law.
Stephen Bottomley
One surprising claim is that the common law is actually more predictable than civil law. Over the centuries so many cases have been decided by the most senior courts, covering thousands of different situations and binding on lower courts, that although you do have to dig a bit to get the answer, the answer that comes out of the other end is a predictable one.
In civil law, it may be easy to find which code provision applies to a particular situation but you might have no idea how the judge will interpret or apply the code.
Stephen Parker
Some economists argue that it is the common law that led to most innovation in property rights and contracts, leading to the earlier rise of England and the United States as commercial nations. As the hidden hand of the market pushed people to find the most efficient and advantageous solution, this argument goes, they in turn pushed and prodded the common law with novel arguments; not held back by an all-encompassing code.
Stephen Bottomley
A sleeper issue in the whole of the world’s law is what you might call the relevance of consequences. In the common law, occasionally a superior court is faced with a choice and thinks about the consequences of one choice versus the other. But by and large the law is applied irrespective of its consequences and it is up to Parliament to legislate if it doesn’t like it. Consequences probably creep into the reasoning of judges more in civil law systems.
Stephen Parker
However we can glimpse a future where algorithms draw on huge databases and can generate detailed predictions of the consequences of one rule versus an alternative rule, on the economy, or public safety, or health, whatever the case may be.
Stephen Bottomley
This will make courts confront a philosophical question about justice; is it something essentially about following correct procedure (such as applying a common law precedent blindly) or is it about outcomes.
Stephen Parker
And of course, we looked at this in Episode 10, on What is Justice?
Stephen Bottomley
So, Steve, are you trying to fool the listener into thinking this podcast series is all planned as a coherent whole?
Stephen Parker
No I’m a common lawyer. I just pile one thing on top of another and see where it takes us.
Further Reading