Stare decisis et non quieta moverenote
Describe The Common Law here
Ah. Well. Glad you asked. But before you do, allow me to see if there is any binding precedent that would prevent this court from granting that motion...
The Common Law (TOW link
) is the system of law deriving from the traditional "common" laws of England. Originally peculiar to that country, the common law was spread around the world by The British Empire
, and is used in some form in 55 jurisdictions around the world. English-speaking tropers will be familiar with it, as it is the law used in the United Kingdom (except Scotland—kind of...note
), the United States (except Louisiana—kind of), Canada (except Quebec...sort of), Australia, New Zealand, Pakistan, Malaysia, Burma, Nigeria, Ireland, Israel (...for the most partnote
), most former British African colonies (excepting Sudan,note
and South Africanote
) and some international organizations.note
However, the largest common-law country is in fact India, which uses the common law in all cases except for "personal" or family law (where the law of a person's religion applies; it can get quite confusing). In all, about two and a quarter billion people live in common law jurisdictions. Since this part of the wiki chiefly covers media from the English-speaking world, the common law will show up in a lot
The Decision Must Stand: Stare Decisis and its funny effects
As much as the common law seems almost intuitive to people living in these countries, it has a number of odd features. Chief among these is the principle of stare decisis
: the decision must stand. This means that courts are required to follow the precedent established by previous judgments, the idea being that if two similar cases come before the court, they ought to be decided the same way both times.note
What this means, as a practical matter, is that in common-law systems, judges effectively make
laws: once an issue comes before a common-law court, later, similar cases must be decided in the same way. So when a new situation arises, each side generally tries to make the case that the new situation is similar or dissimilar to a situation in one old case or another; the analogy the court likes best stands for all future similar situations.note
These decisions are regarded as law within their jurisdictions.
Decisions in an area of the law traditionally left alone by legislatures like torts or contracts can be overturned by statute. Interpretations of statutes can also be overruled by amendment (although this can be tricky if the statute in question is a constitution, which may have high hurdles to amendment). A decision may also be overturned by a higher court. A court's ability to overturn its own
precedents varies among jurisdictions; the House of Lords was strictly bound by its own precedents while it was the UK's court of last resort, for example, but the Supreme Court of the US and most supreme courts of the American states
are free to overturn old decisions based on statute law and constitutional law (particularly the latter), on the grounds that the previous decision might itself have been contrary to the proper interpretation of the statute/constitution. Decisions based entirely on common law (i.e. previous court decisions), however, cannot generally be reversed unless the existing legal principle is so obviously bad that it can no longer stand (most often, this happens by carving out exceptions or using alternative theories of law that eventually cover more situations than the rule, at which point the rule is declared to just be dead—what is termed in legal parlance as the exception "swallowing" the rule).note
In the United States, the Federal Circuit Courts (i.e. the intermediate appeal level between Federal District Courts, where the actual trials take place, and the Supreme Court) can overturn precedent by going en banc
. Basically, going en banc
means you have to get over half the judges in Circuit together to agree to rehear an appeal to determine if they are going to change the law of the jurisdiction.note
However, they can only do this once per issue; once a court has decided a case en banc
, that decision stands unless the Supreme Court overrules the decision or overrules a bit of case law vital to the decision (or, of course, if the statute or constitution is changed through the political process).
The upshot of this system is that it allows legislatures to deliberately leave new laws vague and allow for the courtsnote
to map out the exact contours of the law. The classic example of a short statute with a highly developed (and oftentimes changing) body of case law is the Sherman Antitrust Act
. The substantive Sherman Act is three fairly short sentences long,No, really.
but it has led to dozens of cases (a few of which in turn have led to statutes to "fix" an interpretation Congress didn't like
; these tend to be a bit longer, but you could still fit them on one or two sheets of paper) that together serve as the entire body
of federal-level American competition law
—a branch of law other countries (especially civil-law ones) typically have encoded in gigantic, complex codes. This sort of arrangement makes legal research in common-law countries a nightmare (until recently; the wonders of computers have fixed a lot of problems), but make the actual legal points a bit easier to understand: the law comes out of concrete cases and articulated in judicial opinions worded as essays understandablenote
to any reasonably intelligent and educated person, rather than being abstract principles articulated in obtuse and technical language.
Another effect is that since law is made by generalizing from cases to general rules, the limits of the law tend to be a lot clearer: a benefit for businessmen (no, not that kind
of businessmen) who are afraid that their new moneymaking venture might skirt the law and get them into a needless lawsuit. Up until recently, murder wasn't even a statutory crime in the UK; this comes under the category of a "common law offence", where the legality of an action is set by court precedent and not statute. Common-law offenses also existed in the US: as recently as The Nineties
, Jack "Dr. Death" Kevorkian was charged with common-law murder, probably to deny to him a defense that might have been available under Michigan's regular murder statutes. That said, all American courts are agreed that the ability to create
new crimes rests exclusively with the legislative branch.
Law and equity
On another note, one of the traditional things that separated the Common Law from other legal systems was the concept of equity. In the broad sense, equity is the element that "mitigates the rigor of the common law," i.e. keeps lawyers from becoming Rules Lawyers
and engaging in systematic Loophole Abuse
, and thus preventing judgments from wronging the wronged party or ignoring mitigating circumstances. In the narrow sense, "law" and "equity" eventually developed into two parallel legal systems in England—one based on the law created by the judges of the King, and one based on the system of the Court of Chancery, which was itself an outgrowth of a tradition of throwing oneself on the King's mercy. In time, the usual courts eventually settled on monetary damages as the usual manner of settling a dispute, while the Court of Chancery eventually settled on equitable remedies
. At a certain point around the beginning of the 19th century, jurists in both Britain and the US realized that this system was absurd, and merged the two.note
However, the rules developed by each of these court systems remain today (even if they aren't always observed), which can be quite confusing.
Trials as boxing matches: The Adversarial System and the Jury
Another peculiarity of the common law is its adversarial system: cases are presented as a sort of battle of words, in which one side "wins" and the other "loses" on the basis of the strength of their arguments; the judge retains a limited right to call and question witnesses, but mostly serves as referee between the lawyers. While this feature is by no means inseparable from the common-law system,note
the two generally come together. This generally is the target of derision from continental European countries, who use the civil law
and an inquisitorial system, in which judges are directed to "inquire" after the truth, calling and questioning witnesses themselves with occasional assistance from the lawyers. Arguments over the benefits and drawbacks of this feature are the sorts of things that get comparative law experts really worked up
. People who live under common law often see its provisions as universal, which can lead to a shock when they're exposed to other legal systems (and see also Eagleland Osmosis
, to which this applies).
Also associated with the adversarial system and the common law is the institution of the jury. This is not a complete distinction: juries exist in some civil-law jurisdictions, and the British had a habit of not introducing them to their African colonies, typically because the infrastructure was lacking but also because they wanted better control over the cases.note
That said, the jury fits in very nicely with the common/adversarial system. The adversarial system lends itself to making a distinction, more or less unique to the common law, between fact and law—that is to say, between "what happened" and "what do we do about it". The jury system is predicated on the idea that twelve random ordinary folks have just as much sense as a trained judge when it comes to weighing evidence about what happened in a case—more sense, in fact, because one judge might be biased, while getting 12 random people to agree on something is more likely to end up averaging out biases. Questions of law—i.e. questions about which rules apply to what happened—are presented to the judge.
To be a bit clearer: A useful schematic is that "Did John Doe slap Jane Roe" and "Did Joe Bloggs put his signature on the document" are questions of fact; "Can Jane Roe sue John Doe for battery if he was only five years old when he slapped her"Aside
and "Did the fact that Joe Bloggs put his signature on the document make it a contract if it didn't say what he thought it said" are questions of law. An exception to this general scheme is the bench trial, when the parties waive their right to a jury trial and have the judge settle questions of fact; this most usually occurs in certain types of lawsuit—most often fought by large corporations and (sometimes) government agencies, where the facts are more or less agreed upon and the case rests primarily on highly technical points of law that would bore the pants off any jury not composed entirely of lawyers.note
Most often, these trials aren't actually "trials", as since the parties agree on the facts the case is decided on summary judgment (i.e. by the judge ruling on issues of law before the oral presentation of evidence begins). Moreover, you are not going to get anything other than a bench trial in a civil case unless you are either (a) in the United States (where the civil jury trial is fiercely defended by plaintiff's attorneys) or (b) in England and Wales and pursuing an action in defamation (slander/libel). Finally, even in the US, if you're suing the government, the case will be a bench trial; the theory goes that the government has sovereign immunity from suit and is merely letting
you sue them, and so can dictate the terms of the trial.note
Statistical analysis of the two systems in criminal cases indicates that the adversarial system, with its usual jury, tends to ever so slightly favor acquitting the guilty, while the inquisitorial system ever so slightly favors convicting the innocent; however, the difference is almost negligible statistically, and of course it is virtually impossible to say which system is "better" in the case of civil lawsuits (and indeed, even in adversarial systems civil suits outside of tort are at least as likely to be bench trials as jury trials—or even more likely to be settled or adjudicated before
trial, on the pleadings or at summary judgment).
What's a case?
Back to other issues, the United States and Australian Constitutions actually forbid federal court judges from hearing cases that do not involve actual disputes
. One of the biggest, most hotly contested areas of Constitutional law (which, ironically, has been appealed to the Supreme Court on multiple occasions) is that of standing
, which determines whether you even get in the federal courthouse doors. You can't just declare yourself an adversary
and expect to be heard. This is mostly a problem because of the doctrine of Separation of Powers — basically, the idea that no branch of the law should have too much power. Making 'advisory judgments' which don't resolve disputes is a duty relegated (perhaps arbitrarily) to the executive, meaning that courts are forbidden from engaging in it. Note that this rule only applies to Federal Courts in America. American State courts can hear whatever types of cases their respective state constitutions allow. Australian state courts have no such luxury.
A global community of law
A final peculiarity of common law is its universality, especially in the area of tort.note
For instance, the obiter dictanote
of Chief Judge Benjamin Cardozo in the New York Court of Appealsnote
case Ultramares Corporation v Touche
, warning of creating "an indeterminate liability, in indeterminate amounts, to an indeterminate number of people" in negligence cases is widely quoted. A court case in a common law jurisdiction may cite cases from all over the common law world — it is not uncommon to see a British case citing decisions by the United States Supreme Court or even state courts,note
And vice versa. Some cases have become so widespread that they have formed the basis of an area of law in a number of countries.
The most famous of these internationally-cited cases is the Scottish case of Donohue v Stevenson
(also known as "The Case of the Glasgow Snail
"), which established the modern concept of negligence at common law, and is widely quoted around the world. Other such widespread cases are Jacob & Youngs, Inc. v. Kent
(another Cardozo case, on how to assess damages for breach of contract), Wagon Mound No. 1
(an Australian appeal to the Judicial Committee of the Privy Council on proximate cause/the scope of liability in negligence), Hadley v Baxendale
(an English Court of Exchequer case by Baron Alderson on the limits of consequential damages in breach of contract) and the paired cases Escola v. Coca Cola Bottling Co. of Fresno
and Greenman v. Yuba Power Products
(California Supreme Court cases authored by Justice Roger Traynor
establishing the principle of strict product liability; the first was a concurrence and the second was him applying the concurrence's logic in a majority opinion twenty years later).
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
Donoghue v Stevenson 1932 S.C. (H.L.) 31 at 44