Common Law

From Max-EuP 2012

by Stefan Vogenauer

1. Terminology

The term ‘common law’ has four different meanings; each serves to distinguish a particular body of legal rules and principles from other such bodies. Originally, the term denoted the law that the English royal judges created from the Middle Ages onwards: it was ‘common’ to all of England as opposed to the local laws that prevailed in different regions. Later, ‘common law’ was used in a second, more general sense to refer to the entirety of judge-made law in contrast to statutory law and customs. The third meaning of the term designates the case law created by the royal ‘common law courts’ in Westminster as distinct from the rules of equity developed in the separate jurisdiction of the Lord Chancellor. This jurisdiction evolved as a corrective mechanism against intolerable hardship caused by unmitigated application of rigid common law rules. Ultimately, however, the rules of equity lost their flexible character and became hard-and-fast rules of general application; today the distinction between common law and equity is, at least as far as England is concerned, only of historical interest.

In the context of European private law it is the fourth meaning of ‘common law’ that has the greatest relevance. This denotes the entirety of legal systems which trace their origins to English law. Many countries have lived under British rule, including Ireland, many of today’s United States, Canada (excluding Quebec), Australia, New Zealand, India, Jamaica, Nigeria and many other Asian, Caribbean and African territories. English law was swiftly introduced everywhere in the Empire, although it usually applied only in certain areas (such as commercial law) or only to people of British origin (eg with regard to family law and the law of succession). However, English law pervasively shaped the legal style of these countries, not least because decisions of their highest courts could be appealed to the Privy Council in London which ensured far-reaching uniformity of the common law throughout the Commonwealth.

2. European private law and the common law—civil law dichotomy

The Anglo-American common law is usually contrasted with the continental ‘civil law’ tradition, and the existence of two major legal families in Europe is widely seen as one of the main obstacles to legal unification or harmonization. However, in the context of European private law it is more appropriate to contrast English law with the continental jurisdictions, rather than ‘the’ common law with ‘the’ civil law. The somewhat sweeping use of these generic terms is riddled with imprecision and misplaced for two reasons.

First, the generic term ‘civil law’ refers to a number of different legal traditions which are usually divided by continental comparative lawyers into the ‘Romanistic’, the ‘Germanic’ and the ‘Nordic’ legal families. The divergences between these families are significant, in some respects even more significant than vis-à-vis the common law. At the same time, the civil law tradition also comprises jurisdictions outside Europe, particularly the Latin American legal systems.

Secondly, the common law jurisdictions are fairly heterogeneous as well. As a rule of thumb, it may be said that the longer a former part of the Empire has been independent, and the earlier it abolished the appeal to the Privy Council, the more strongly its law will deviate from English law. The deep-level structural differences of English law and the law(s) of the United States, for example, are so pronounced that—whilst it still makes sense to speak of an Anglo-American tradition from a historical perspective—any loose talk of ‘Anglo-American law’ is highly misleading. In any event, England is the only notable common law jurisdiction in Europe. Even the law of Scotland (Scottish private law) cannot properly be regarded as a common law jurisdiction. It is usually classified as a mixed legal system because it was shaped by continental legal thinking during its formative period and came under the influence of English law only after the 1707 Acts of Union.

3. Factors determining the legal style of English law

A number of features set English law apart from continental legal systems. From the perspective of European private law, the existence of what have been called ‘especially distinctive institutions’ (Zweigert and Kötz), such as trusts and the doctrine of consideration (indicia of seriousness), is one of the obvious obstacles to further harmonization. Moreover, fundamental structural characteristics, which are often the result of English legal history, carry much greater weight. English law, for example, has traditionally been judge-made law. For centuries there was only sporadic legislation and the function of law-making was mostly left to the courts. To this day judges are regarded as the standard bearers or ‘legal honoratiores’ of the legal system. Until recently, legal scholars were held in comparatively low esteem, particularly given that English law was not taught at universities until the late 19th century; generations of young lawyers were educated by practitioners and judges in the Inns of Court. English law has therefore traditionally been characterized by its close proximity to legal practice and its relatively low degree of scholarly sophistication (legal scholarship).

As a result, the idea that the law is an ordered, comprehensive and harmonious ‘system’ has never gained ground in England. For a long time, the different bodies of law, case law and statutory law, as well as common law and equity, coexisted side by side without much interaction. Even today, the connections between different areas of law are frequently left unexplored. Legal reasoning is based on proceeding inductively from one case to another rather than on deductions from overarching principles. The best-known example in private law is the absence of a general principle of good faith that might provide guidance for the solution of individual cases. Instead, that role is played by a host of specific legal doctrines which are functionally equivalent to various (but not all) features of the continental versions of the principle. It is frequently overlooked, though, that English law also operates with a number of broad general principles. Contract law, for instance, is dominated by the principle of freedom of contract. In fact, English private law, standing squarely in a long liberal tradition, overwhelmingly favours the citizen’s individual freedom and adopts a relatively sceptical stance vis-à-vis social welfarism. A related feature is the strong emphasis on legal certainty, the core value of English law that is often promoted even at the expense of substantive justice in an individual case. This stance may be traced back to early English private law with its focus on land law and commercial law, both of which are particularly geared towards legal certainty.

4. Convergence of common law and civil law?

With a view to these (and other) factors that determine the distinct legal style of English law, it is sometimes claimed that the differences in mentality between English and continental lawyers cannot be bridged. More recent comparative scholarship increasingly questions this contention and considers the ideal type contrast of common law and civil law as an ‘obsolete distinction’ (James Gordley). Three strands of argument are advanced to support this view. First, scholars like Reinhard Zimmermann have shown that, contrary to the traditional view, English law did not develop in complete isolation from the continental ius commune. Although there was never a comprehensive reception of Roman law, continental legal thinking influenced English law in many different ways far into the 19th century. Secondly, the law of the European Union levels out some of the differences between the laws of the Member States, at least on the surface. Thirdly, other legal developments in the 20th century have changed both English law and the continental laws in a way that has led to greater convergence. The rise of legal scholarship in England, for example, has made English law much more academic. At the same time, the influence of legal scholars on the Continent has been in decline, whilst the standing of the judiciary has greatly increased. Furthermore, it is no longer possible simply to equate the civil law with codified law and the common law with case law: the reality of legal sources is much more complex on both sides of the Channel. This is not to deny the ongoing existence of significant differences between English law and the continental systems; but at the same time, the idea that any attempt to create a European private law is doomed because of unsurmountable differences in legal mentality seems to be increasingly unsustainable.

Literature

Theodore FT Plucknett, A Concise History of the Common Law (5th edn, 1956); Reinhard Zimmermann, ‘Der europäische Charakter des englischen Rechts: Historische Verbindungen zwischen civil law und common law’ (1993) 1 ZEuP 4; James Gordley, ‘Common Law und Civil Law: Eine überholte Unterscheidung’ (1993) 1 ZEuP 498; Tony Weir (tr), Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (3rd edn, 1998) 180 ff; John H Baker, An Introduction to English Legal History (4th edn, 2002); Roger Cotterrell, The Politics of Jurisprudence (2nd edn, 2003) ch 2; Mathias Reimann, ‘Die Erosion der klassischen Formen: Rechtskulturelle Wandlungen des Civil Law und Common Law im Europa des 19. und 20. Jahrhunderts’ [2006] Zeitschrift für Neuere Rechtsgeschichte 209; H Patrick Glenn, Legal Traditions of the World (4th edn, 2010).

Retrieved from Common Law – Max-EuP 2012 on 28 May 2022.

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