Understanding Common Law: UK, USA, and Basics

• Common law legal systems do not necessarily have three layers of courts, unlike common law courts, because obtaining an appeal is more complex.

English Common Law

• It features an unwritten constitution.
• Laws originate from judicial precedents rather than parliamentary legislation.
• Established after the Battle of Hastings in 1066.
• Expanded through royal court writs.
• The Equity Court was developed for contract and private law.

American Common Law

• The 13 colonies did not create a civil code due to concerns about common law influence.
• Regional variations existed, such as French civil code and Spanish law influences in Louisiana.
• The US legal system is based on the English system but evolved differently.
• The US has a written constitution, unlike the UK.

Common Law: General Basics

• Common Law started in England and spread through the British Empire.
• India now operates under a mixed legal system, despite the introduction of Common Law.
• Each country has developed its own version of Common Law.
• US Common Law is currently more influential and widely imitated than English Common Law.
• Common Law is primarily applicable in the Commonwealth.
• In the UK, Common Law is fully used only in England, Wales, and the Isle of Wight; Scotland and the Channel Islands use mixed systems.
• The term "Common Law" has multiple meanings, including distinctions from Equity Law and Statute Law.

The Calvin Case (1608)

• English law must be brought into territories lacking a "civilized" legal system.
• This case was the origin of the Ius Soli principle, where nationality is determined by the country of birth.

The Privy Council

• During colonization, it reviewed laws across the Commonwealth to ensure compliance with English law.
• It unified Common Law through judicial review.
• Today, the Privy Council exists but no longer has significant power.

More About Common Law

• It is considered an open jurisdiction system where judges have discretion in new cases.
• Judges can consider cases from other courts and Common Law countries.
• Judgements can be inspired by precedents from other Common Law countries.
• A shared language has aided Common Law unification and scholarly exchange.
• Laws mainly arise from case law, with judges making the law, not the legislature.
• The Rule of Binding Precedent (Stare Decisis) was introduced to provide system continuity.

Equity Law

• It was a parallel legal system.
• Equity Law rules were less stringent than Common Law rules.
• It addressed cases beyond the scope of Common Law.

Statute Law & the Move Away from Precedents

• Written law is produced by acts of parliament.
• Originally, case law (judges' decisions) was the primary law source.
• Written rules were rare exceptions.
• After WWII, written law (Statute Law) use increased.
• Written law is now common but needs to be used with Common Law, especially in contract law.
• Statutes clarify and elaborate on laws without eliminating Common Law.
• Full legal regulation requires both statute and case law in the UK and US.
• Statutes technically precede precedents formally but not substantively.

US VS UK Common Law

• US: Judicial review, established by Marbury v. Madison, assesses constitution compliance.
• UK: Lacks formal judicial review but uses declarations of incompatibility for laws conflicting with human rights conventions, prompting parliamentary action.

Similarities Between Civil Law and Common Law

• Civil Law: Binding precedents is not a rule, but higher court decisions are often followed by lower courts.
• Common Law: Binding precedents has always been a rule.

The Converging

• Civil Law and Common Law systems converge, starting after WWII.
• Common Law countries use more statutes.
• Higher courts' precedents in Civil Law countries become more persuasive (binding).

Main Differences Between Civil Law and Common Law

Legal Education

• Civil Law: Jurists are trained academically as "learned jurists" with separate exams for lawyers and judges; judges are independent public servants.
• Common Law:
  • UK: Jurists get practical training. A bachelor's degree is required, but it can be in any subject. Juridical training then takes place in a professional order as either a solicitor or barrister. Judges are appointed from lawyers without public exams.
  • US: Jurists require a 3-year postgraduate law degree (JD). Training is case-based and practice-oriented. Judges are appointed or elected.

Settlement

• Common Law: Most cases are settled before trial through negotiations.
• Civil Law: Pre-trial settlements do not occur.

Judgement Styles

• Common Law: Personal judgements are issued with published reasoning, including dissenting opinions.
• Civil Law: Judgements are impersonal, summarizing facts, claims, reasoning, and the decision, without dissenting opinions.

3 Layers of Feudalism in England

• The king owns all the land.
• Lords use the land with allegiance to the king.
• Serfs are linked to lords for land use.

Centralization of Justice

• The king centralized justice using the royal court and writs.

Westminster Court

• King's Bench: Criminal offenses handled with Writs of Trespass.
• Common Pleas: Handled private law, ignoring local justice administration.
• Special Courts: Other courts like Ecclesiastical and Maritime courts existed.

Itinerary Justice

• The king traveled with courts to provide local justice.
• This brought the king closer to the people.

Writ System

• Writs are formal letters with the king's seal, directed to sheriffs or lords for justice.
• Writs were required to access royal courts; without a writ, there is no right.
• Granting new writs equaled legislating, with "remedies precede rights".

Provisions of Oxford (1258)

• Following the Magna Carta, the creation of new writs was banned.
• The Chancellery could no longer grant new writs.
• Only existing writs could be used, limiting the creation of new rights.

2nd Statute of Westminster (1285)

• This compromise allowed for new writs with parliament's permission.
• Existing writs could be used for similar new cases.

The “Action on the Case” Procedure

• Used to provide justice in new situations not covered by existing writs.
• Existing writs could be used for similar new cases, mirroring the 2nd Statute of Westminster.

The Writ of Trespass

• It protects against unlawful and violent invasions of personal and property rights, requiring an act of violence.
• Consequences included imprisonment and damages.

Evolution of the Writ of Trespass:

Writ of Trespass on the Case (Tort Liability)

• Violence was no longer needed; damage from negligence or intentional conduct became the requirement.
• It shifted from criminal to private law.
• Harmful behavior not considered real trespass was covered if it lacked violence.

Writ of Trespass on the Case in Assumpsit

• It provided contract protection and remedies.
• The punishment was damages.

Specific Performance & Injunction

• Introduced by the Equity Court, allowing requests for specific actions, not just damages.

Equity Court

• Administered by the king/chancellor, it was a parallel system to Common Law.
• The dual system lasted until the Judicator Act of 1873 (effective 1875).
• It introduced performance, injunction, and remedies for undue influence.
• From 1875, a unified court system applied Common Law and Equity Law principles in all courts.

Court System & Layers

• Besides the standard courts, there are also County courts (small claims) and Magistrate courts (minor crimes).
• There are not always three layers (as in Civil Law); some US states have only two.
• UK: 3 layers, but appeal is not guaranteed and requires the first instance court's permission.
• Higher courts decide only a few cases yearly.

More About Precedents

• Rule of Binding Precedents (Stare Decisis): Judges cannot depart from precedents.
  • Vertical Perspective: Higher courts' precedents bind lower courts, based on hierarchy.
  • Horizontal Perspective: Equal-rank courts:
    • US: Courts can change their minds more freely.
    • UK: Higher courts generally follow their own precedents; the Supreme Court (House of Lords) made an exception in 1972 for legal system development.
• Ratio Decidendi: It is the general legal rule extracted from a judgement that needs to be followed.
• Judges can avoid precedents through:
  • Distinguishing: Showing the current case's facts differ from the precedent.
  • Overruling: Deciding not to follow a precedent; overturning Roe v Wade is an example.

Sources of Law

• Statutes:
  • Principle of the Supremacy of the Parliament: Statutes are formally superior to Case Law.
  • Statutes depend on Common Law and require interpretation, making interpretations more important.
• Case Law