THE COMMON LAW TRADITION

Yvonne Dolorosa
Ronilo Sarito
Chester Elias
Weird Laws of England
 It is illegal to
handle a
salmon in
suspicious
circumstances.
It is an offense
to be
intoxicated
and be in
charge of a
horse or cow.
 All beached
whales shall
be offered to
the Reigning
Monarch.
It is illegal for
a commoner’s
pet to mate
with a pet of
the royal
house without
permission.
The Common Law Tradition

• known as judicial precedent or judge-made

law, or case law
• derived from judicial decisions of courts
and similar tribunals
• the body of law made by judges
• stare decisis lies at the heart of all
common law systems
The Common Law Tradition

• Today, one-third of the world's population

lives in common law jurisdictions.
Common law as opposed to statutory law
and regulatory law

• The first definition of "common law" given

in Black's Law Dictionary, 10th edition,
2014, is "The body of law derived from
judicial decisions, rather than from
statutes or constitutions; [synonym]
CASELAW, [contrast] STATUTORY LAW."
Common law as opposed to statutory law
and regulatory law

• "common law" distinguishes the authority that

promulgated a law
• "statutory law" enacted by a legislature
• "regulatory law" (in the U.S.) or “delegated
legislation” (in the U.K.) promulgated by
executive branch agencies pursuant to delegation
of rule-making authority from the legislature
Pure common law

• traditional and inherent authority of courts

to define what the law is, even in the
absence of an underlying statute or
regulation
Interstitial common law

• court decisions that analyze, interpret and

determine the fine boundaries and
distinctions in law promulgated by other
bodies
Common law legal systems as opposed to
civil law legal systems

• Common law systems place great weight

on court decisions, which are considered
"law" with the same force of law as
statutes
Common law legal systems as opposed to
civil law legal systems

• Common law systems place great weight on court

decisions, which are considered "law" with the
same force of law as statutes.
• Common law courts have had the authority to
make law where no legislative statute exists, and
statutes mean what courts interpret them to
mean.
Common law legal systems as opposed to
civil law legal systems

• In civil law jurisdictions, courts lack authority to

act if there is no statute.
• Common law systems trace their history to
England, while civil law systems trace their history
through the Napoleonic Code back to the Corpus
Juris Civilis of Roman law.
Archaic meanings and historical uses

• "common law" used to refer to the pre-Christian

system of law, imported by the Saxons to England,
and dating to before the Norman conquest
• "Common law" as the term is used today in
common law countries contrasts with ius
commune.
Archaic meanings and historical uses

• Black's Law Dictionary 10th Ed., 3rd definition of

common law is "General law common to a country
as a whole, as opposed to special law that has only
local application."
Misconceptions and imprecise
non-lawyer usages

• Under the modern view, “common law” is not

grounded in “custom” or "ancient usage.“
• From the earliest times through the late 19th
century, the dominant theory was that the
common law was a pre-existent law or system of
rules, a social standard of justice that existed in
the habits, customs, and thoughts of the people.
"pre-existing custom" view

• (a) jurisdictions could not logically diverge from

each other
• (b) a new decision logically needed to operate
retroactively
• (c) there was no standard to decide which English
medieval customs should be "law" and which
should not
under the modern view

• (a) the common law in different

jurisdictions may diverge
• (b) new decisions need not have
retroactive operation
• (c) court decisions are effective
immediately as they are issued
Misconceptions and imprecise
non-lawyer usages

• common law is not "unwritten“, it exists in writing

• common law is not the product of "universal
consent“ but rather, often anti-majoritarian
Basic principles of common law
- Common law adjudication
• ascertain the facts
• locate any relevant statutes and cases
• extract the principles, analogies and statements by
various courts
• consider decisions of higher courts or legislatures
• determine "what the law is“ from all the lines drawn
and reasons given
• apply that law to the facts
Civil law systems – comparisons and
contrasts to common law

• The main alternative to the common law system is

the civil law system, which is used in Continental
Europe, and most of the rest of the world.
• Judicial decisions play only a minor role in shaping
(pure) civil law.
The role of written decisions and precedent

• In common law jurisdictions, nearly every case

that presents a bona fide disagreement on the
law is resolved in a written opinion.
• The legal reasoning for the decision, known as
ratio decidendi, not only determines the court's
judgment between the parties, but also stands as
precedent for resolving future disputes.
The role of written decisions and precedent

• A Single decided case is binding common law to

the same extent as statute or regulation, under
the principle of stare decisis.
• In contrast, in civil law systems, individual
decisions have only advisory, not binding effect.
• In civil law systems, case law only acquires weight
when a long series of cases use consistent
reasoning, called jurisprudence constante.
Contrasting role of academic writings in
common law and civil law systems
• In common law jurisdictions, lawyers and judges
tend to use these treatises as only "finding aids" to
locate the relevant cases.
• In common law jurisdictions, scholarly work is
seldom cited as authority for what the law is.
• In civil law jurisdictions, courts give the writings of
law professors significant weight.
Narrowing of differences between
common law and civil law

• The contrast between civil law and common law legal

systems has become increasingly blurred, with the
growing importance of jurisprudence (similar to case
law but not binding) in civil law countries, and the
growing importance of statute law and codes in
common law countries.
Summary of Distinctions between
Common Law and Civil Law
 History
CIVIL LAW COMMON LAW
Common law systems have
evolved primarily in England
The civil law tradition
and its former colonies,
developed in continental
including all but one US
Europe at the same time and
jurisdiction and all but one
was applied in the colonies of
Canadian jurisdiction. For the
European imperial powers
most part, the English-
such as Spain and Portugal.
speaking world operates
under common law.
 Legal System
CIVIL LAW COMMON LAW

Legal system originating in Legal system originating in

Europe whose most prevalent
feature is that its core
principles are codified into a
referable system which serves
as the primary source of law.
Europe whose most prevalent
feature is that its core
principles are codified into a
referable system which serves
as the primary source of law.
 Role of judges
CIVIL LAW COMMON LAW
Chief investigator; makes Makes rulings; sets precedent;
rulings, usually non-binding to referee between lawyers.
3rd parties. In a civil law Judges decide matters of law
system, the judge’s role is to and, where a jury is absent,
establish the facts of the case they also find facts. Most judges
and to apply the provisions of rarely inquire extensively into
the applicable code. Though matters before them, instead
the judge often brings the relying on arguments presented
formal charge by the part
 Countries
CIVIL LAW COMMON LAW

Spain, China, Japan, Germany,

most African nations, all
United States, England,
South American nations
Australia, Canada, India
(except Guyana), most of
Europe
 Constitution
CIVIL LAW COMMON LAW

Always Not Always

 Precedent
CIVIL LAW COMMON LAW

Only used to determine

Used to rule on future or
administrative of
present cases
constitutional court matters
 Jury Opinion
CIVIL LAW COMMON LAW
In cases of civil law, the
opinion of the jury may not Juries are comprised only of
have to be unanimous. Laws laypersons — never judges
vary by state and country. and, in practice, only rarely
Juries are present almost lawyers — and are rarely
exclusively in criminal cases; employed to decide non-
virtually never involved in civil criminal matters outside the
actions. Judges ensure law United States.
prevails over passion.
 Sources of Law
CIVIL LAW COMMON LAW

1. Constitution (not in the UK)

2. Legislation – Statutes and
1. Constitution
subsidiary legislation
2. Legislation – statutes and
3. Judicial precedent –
subsidiary legislation
common law and equity
3. Custom
4. Custom
4. International Law
5. Convention
6. International Law
 Type of argument and role of lawyers
CIVIL LAW COMMON LAW

Adversarial. Lawyers ask

Inquisitorial. Judges, not
questions of witnesses,
lawyers, ask questions and
demand production of
demand evidence. Lawyers
evidence, and present cases
present arguments based on
based on the evidence they
the evidence the court finds.
have gathered.
 Evidence Taking
CIVIL LAW COMMON LAW

Widely understood to be a
necessary part of the litigants’
Evidence demands are within
effective pursuit or defense of
the sovereign inquisitorial
a claim. Litigants are given
function of the court — not
wide latitude in US
within the lawyers’ role.
jurisdictions, but more limited
outside the US.
 Evolution
CIVIL LAW COMMON LAW

Both systems have similar sources of law- both have statutes

and both have case law, they approach regulation and resolve
issues in different ways, from different perspectives
THE COMMON LAW TRADITION
Yvonne Dolorosa
Ronilo Sarito
Chester Elias