What is Common Law?

Common law is the legal system used in Great Britain and the United States (except the state of Louisiana). According to common law, judges must consider the decisions of earlier courts (precedents) about similar cases when making their own decisions. People sometimes call common law “customary law” because judges consider the customs (common practices) of the country when making decisions. In many countries the justice system combines elements of civil law (private cases), which was handed down from Roman law, and common law, which developed in England. In a combination system, private cases are judged in civil courts; however, cases involving crimes against society (criminal law) are tried in criminal courts, where decisions are based on precedents.

History of common law

Customs

These are rules of behavior which develop in a community without being deliberately invented. There are two main types of customs: General customs and local customs.

General Customs

Historically these are believed to have been very important in that they were, effectively, the basis of our common law. It is thought that following the Norman conquest (as the country was gradually brought under centralised government) the judges appointed by the kings to travel around the land making decisions in the kings name based at least some of thier decisions on the common customs. This idea caused Lord Justice Coke in the 17th century to describe these customs as being ’one of the main triangles of the laws of England’. However, other commentators dispute this theory.

Today, Michael Zander writes that probably a high proportion of the so-called customs were almost certainly invented by the judges. In any event, it is accepted that general customs have long since been absorbed into legislation or case law and are no longer a creative source of law.

Local Customs

This is the term used where a person claims that he is entitled to some local right, such as a right of way or a right to use land in a particular way, because this what has always happened locally. Such customs are in exception to the general law of the land, and will only operate in that particular area.

Since there were (or still are) exceptions to the general common law, the judges, from the earliest times, established a series of rigorous tests or hurdles that had to be passed before they recognised any local customs. These tests still exist today and are used on the rear occasions that a claim to right comes before the courts because of a local custom. That tests are as follows:

• The customs must have existed since ‘time immemorial’
• The customs must have been exercised peaceably, openly and as of right
• The custom must be definite as to locality, nature and scope
• The customs must be reasonable.

It is very unusual for a new custom to be considered by the courts today and even rarer for the courts to decide that it will be recognised as a valid custom, but there have been some such cases. For example in Egerton v Harding (1974) the court decided that there was a customary duty to fence land againts cattle straying from the common. Another case was New Windsor Corporation v Mellor (1974) where a local authority was prevented from building on land because the local people proved that was a custom that they had the right to use the land for lawful sports.

Although customs may develop, they are not part of the law until recognised by the courts; it is the judges who decide which customs will be recognised as enforceable at law.

Common law

Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo-Saxon times there were local courts which decided disputes, but it was not until after the Norman conquest in 1066 that a more organised system of courts emerged. This was because the Norman kings realised that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king, William the conqueror, set up the Curia Regis (the king’s Court) and appointed his own judges. The nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.

Development of common law

As well as this central court, the judges were sent to major towns to decide any important cases. This meant that judges travelled from london all round the country that was under the control of the king. In the time of Henry II (1154-89) these tours became more regular and Henry divided up the country into ‘circuits’ or area’s for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is believed that the judges on their return to Westminster in London would discuss the laws or customs they had used, and the decision they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or ‘common’ through the whole country, and it is from here that the phrase ’common law’ seems to have developed.

Advantages & Disadvantages of common law

The term “common law” has it’s origins in England in the 11th century. Even today in the US, some common law principles from the original English law are applicable while alongside it is the growing body of common law which is being set as a part of stare decisis i.e. the judicial systems decisions and interpretation of statutory law provisions by judges, are becoming a part of the common law. Other judges look to these decisions as a guideline or as a necessary precedent to follow, while making their own decisions.

There are both advantages and disadvantages to a legal system based on common law or precedent-based.

Advantages

i) Equity

Equity is to correct common law defects and mitigate its harshness. It can be used for all classes of people unlike the common law. The law was very technical in common law and if there was error in the formalities the person making the claim would lose the case. In this case, equity rewards the claimants better. The only remedy that common law could give was ‘damages’ – that is an order that the defendant pay a sum of money to the claimant by way of compensation. The chancellor also developed new remedies which were able to compensate the appelantives more fully than the common law remedy of damages. The main equitable remedies were injunctions, specific performance, rescission, rectification. Equity is not a complete system of law, it merely fills the gaps of common law and soften the strict rules of common law.

ii) Precedents

As these decisions are based on previous judgements, it’s more convenient to follow this process through. People know what to expect; there is an element of predictability. The process is easier and more practical as there are no fixed, lengthy rules but real situations that have already been resolved.

iii) Efficient

As there is already a basis on which the judgment will be passed, a basic framework so to say, the judicial process becomes so much faster. There is certain efficiency in the process as compared to what the procedure would be like in comparison with a system that did not follow the precedent based system. Plus these decisions are based on a precedent and so have a stronger basis.

Disadvantages

i) Perpetuation of bad decisions

The downside of a jugdment that has been made, its that it will be superseded again by other judges even if the decision is defective. And in the common law its about following precedents. This will take a long time to happen. So this directly uphelds a bad decision.

ii) in the absence of precedent

People will not know what to predict when they come to a situation that needs to be taken to court. When there is no precedents judges make decisions based on the evidence given and as far as possible come to a fair judgement, sometimes a view of the evidence by the judge may bring about a wrong judgment.

iii) Need for records

Because these precedents are to be followed by all other courts or in many cases, lengthy, detailed records have to be maintained. And to make easy the accessing of these cases and previous decisions, uniform indexing methods have to be created and followed diligently.

Comparison between

The Common Law Tradition (Hong Kong) and The FCC Tradition (United States)

Advantages

Advantages of Common Law:

THERE is a certainty of outcome for similar cases. It is highly probable that every future case that is similar in nature will be judged in the same way.

Common Law is dynamic and not closed by statute or precedent. New rules of law will from time to time be authoritatively laid down to meet new circumstance and the changing needs of society.

Common Law accumulates a great wealth of detailed rules for reference. It is much richer in detail than the code of law.

COMMON LAW is practical in nature. The rules laid down are the product, not of academic speculation but of difficulties that have actually risen. Thus, it is in touch with everyday life.

Disadvantages of Common Law:

Common Law is rigid once a rule is established. This causes inflexibility, which can be a problem especially when the decision is outdated or used out of context.

Common Law can be illogical since the rule is dependent on the context, situation, judge or society in which it is judged.

The collection of rules that comprise common law are both vast in size and enormously complex. It may be difficult and quite time consuming to search through the relevant cases for a just verdict.

Judges may shy away from creating new precedences in areas of new technology for fear of upsetting a burgeoning industry. Rather than creating ripples, judges tend to be conservative in their rulings and may not provide adequate justice to the actual case.

Characteristic Features of Common Law

The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. Judges decide cases cases found in precedents provided by past decisions, in contrast to the civil law system, which is based on statutes and prescribed texts. Other than the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law but today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis. For example, that the previous decisions of the highest court in the jurisdiction are binding on all the subordinate courts. However, different conditions soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This provides a more flexible system, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, there are times, the courts have failed to keep pace with social developments and it has become necessary to legislate to bring about the changes needed. Indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.