An Introduction to the Common Law

The principal source of positive law in the common law system is customary law. The common law system has some analogies to French medieval law: trial by jury, the binding nature of precedent.

B. Statutes and treaties

Statutes and treaties are the other source of law in the anglo-saxon world. However to be enforced even statutes and treaties must be ultimately interpreted by judges.

Statutes are however controlling; that is a statutory law can replace the customary (common) law.

In the hierarchy of norms, the statute is the 'highest' norm.

Then treaties.

Then the common law.

The doctrine of stare decisis states that legal decisions are binding and shall not be reversed. "The decision stands." That is, once a court has entered its judgment upon an issue, it shall not reverse itself. This is in fact the foundation of legality in the common law system - and is one of the principal differences between common and civil law.

2. Argument By Inductive Analogy

In the civil law, the principal method of argument is by deduction from general principals or from statutes toward particular cases. Further there is no doctrine of stare decisis. In the common law however the principle method of analysis is induction and analogy. Induction is reasoning from particular cases toward general principles. Analogy is argument from similarity. Thus the majority of common law reasoning consists in demonstrating the similarities or differences between a case which has been decided and the case at bar (=the case before the court). Why make such analogies? Because of the doctrine of stare decisis. If the court made a certain decision in the past, and if the facts of this case are sufficiently similar to the facts of the previous case, then the decision of the previous case must be applied to this case.

3. Res Judicata

Res judicata is a doctrine similar to stare decisis. Res judicata states that a decision in a particular case shall not be reversed. It is the closes analogy in civil law to the common law concept of stare decisis. However stare decisis is a larger principal, for it applies to all cases.

D. Different courts:

1. Decisions 'At law' and 'In Equity'

Because of a tendency toward formalism (=the rigid application of law without consideration of the facts, that is 'legalism') the English courts were forced to add 'courts of equity' to the 'law courts' in order to add flexibility and justice to the system (which was characterised by rigid pleadings - that is, a misplaced comma could "infect" a pleading (=request for relief, / statement of facts) resulting in a default judgment (=judgment on the pleadings and _not on the facts)

Litigants, being judged on pleadings rather than on the merits (=the actual facts of the case) would seek relief from the king. The growing number of requests for equitable (=faire; just) relief led to the creation of the equity courts.

However the equity courts were always 'special' courts, existing in principle only to correct the defaults of the law courts. Thus certain principles to limit jurisdiction were applied - the most famous being the doctrine of 'unclean hands'. This doctrine states that a litigant in equity must have done no wrong, or he cannot benefit from equitable relief (=legal remedies of the courts in equity).

However if the litigant could meet the equity courts requirements, he could enjoy certain remedies unavailable at law. Law courts act only 'in rem'; that is an equity court can only grant a judgment over a thing and not over a person. Legal remedies are as a consequence limited to monetary compensation. However law courts act not 'in rem' but 'in personam'- that is, the equity court can order personal remedies: for example the specific performance of a contract rather than monetary damages for the breech of contract.

The law and equity courts merged with reforms of the pleading system around 1880 (depending on the jurisdiction). At least one jurisdiction, Arkansas, still has seperate courts of law and equity.

2. Criminal Courts

Criminal procedure in common law is radically different from the civil law system.

First the jury system. The role of the jury in the common law, whether in a civil (=non criminal) or criminal (=penal) proceeding is limited to the determination of facts. The judge's role is to determine the applicable law based upon the facts as determined by the jury.

The right of a jury is the right of the defendant. This right may be waived by the defendant (the person accused or brought to trial). Such waiver must be intelligent, that is both knowing that such right exists, and that such waiver be voluntary.

In the event that the right to trial by jury is waived the judge determines both facts and law. Unlike the french TGI, the judge in the common law is sole.

3. Appellate Courts

Appellate courts in the common law system are limited to the rectification of errors in law. The appellate courts do not determine facts. They may however order a retrial of the facts in cases of manifest error or fraud

Again, appellate courts do not determine facts; this is a major difference between common law and civil law appellate systems.

Since the role of the appellate court is to correct legal errors, appeals courts are a panel of 3 judges.

. Specialised courts (e.g., family courts, tax courts, admiralty)

Certain jurisdictions have specialised courts which deal only in one area - tax, for example, or small claims court (analogical to the prud'hommes). However the appeals process from these courts is similar to that of the trial courts (trial courts are analogical to the Tribunal de Grande Instance).

5. The House of Lords

The house of lords is, technically, the highest court in England. Rarely does it intervene as such. It is analogical to the french senate.

II.The British Constitution

Unlike the American constitution, the British constitution is unwritten. However certain laws of parliament may be seen as fundamental. The the great charter (magna carta) and the charter of the forest as well as the english bill of civil rights can be seen as constitutive documents. In any event, these documents had a marked influence on the American constitution as well as on the constitutions of the other common law countries (Canada, Australia, New Zealand, South Africa, India, Kenya...)