What is meant by the phrase “the common law”? How does the common law of England differ from the jurisprudence of continental Europe?
The phrase “the common law” may be used in several different ways. It is like the word “home”. The meaning differs upon the standpoint of the person using the word and, more particularly, the places, persons or things he wishes to distinguish it from.
Thus, in one context, a lawyer in the USA will consider himself (quite justifiably) to be a “common lawyer” and, in another context, a Chancery lawyer practising in London’s Lincoln’s Inn (specialising, perhaps, in the law of trusts) will not want to be known by this name. This is because the American lawyer (even if he specialises in the law of trusts) will claim a kinship with English jurisprudence, its writings, its precedents and its essentially inductive nature, which he will not so readily see in the codified systems of continental Europe or in the deductive approach of its lawyers, whose ways will not be his ways nor their laws his.
But the Chancery lawyer in Lincoln’s Inn will be at pains to emphasise that he is not specialising in “common law” subjects, such as negligence, nuisance or conspiracy to defraud, but in the unique contribution of the old Court of Chancery in developing new rights, new remedies and new procedures, altogether known as the principles of “equity” in contra-distinction to the rules of common law, those somewhat older laws needing to be ameliorated by the Court of Chancery in the days before widespread statutory reforms.
“England”
The phrase “the common law” is used in its most poetic sense when it is conjoined with the name England (“the common law of England”). “England” is a geographical and legal ex pression, but it is not a nation state. It is part of the United Kingdom of Great Britain and Northern Ireland. England, Wales and Scotland together form “Great Britain”. Jersey, Guernsey (and its dependencies) and the Isle of Man do not form part of the United Kingdom, nor do they constitute colonies. They are in an ambiguous legal position and are called “peculiars of the Crown”. They have a legal and personal connection with the Crown, which antedates even the earliest days of British colonial history.
Within Great Britain the essential distinction is between the law of England and Wales on the one hand, and the law of Scotland on the other. The law of Northern Ireland (and, indeed, the Republic of Ireland also) is essentially a transplanted form of English law, but the same cannot be said of Scotland.
The law of Scotland is closer to the jurisprudence of continental Europe than English law is, although (like English law) it is an uncodified system and follows an adversarial mode of trial, rather than the inquisitorial system adopted in Europe. For this reason and because of its respect for judicial precedent as a source of law, Scotland may be called a “common law” country. Many modern (statute-based) subjects, such as company law and revenue law, are applied uniformly throughout the UK. The essential nature of Scottish law, however, is protected by the Act of Union 1707, which expressly provides that no alteration shall be made “in the laws which concern private right except for evident utility of the subjects within Scotland”.
It must be for Scottish lawyers to express a view on whether this bargain has been kept. To English lawyers, noticing (perhaps) the distinctive nature of Scottish property law and the continental flavour of its law of contract, the proviso in the Act of Union seems to have been respected well enough. Indeed, the influence of Scottish law lords (sitting in the House of Lords) has often been very influential in England and Wales. For example, the leading case on product liability in the tort of negligence (Donoghue v Stevenson [2] AC 562) was a majority decision of two Scottish law lords and one Australian-born Welshman against the votes of two English law lords.[1]
The “common law of England” may, therefore, be defined as the law which originated from the customs and judicial decisions of the people of England and Wales and was influenced to some degree (since the Act of Union 1707) by the common law of Scotland.
For the purposes of this definition it is not necessary to distinguish between the courts of common law and the courts of equity, although when using the phrase “common law” in a narrower sense it becomes essential to do so. Likewise it is not necessary to distinguish between those judicial decisions which constitute unwritten law in the fullest sense of that idea and those decisions which constitute judicial interpretations of statutes and other forms of legislation.
The “common law of England” in the sense that we are now regarding it (also being the sense in which the world at large regards it) means the particular approach to the discovery, interpretation and (where necessary) the making of law was practised, to a greater or lesser extent, throughout the English-speaking world and in contra-distinction (particularly) to the jurisprudence of countries influenced by Roman Law and the later European codes (such as the Code Napoleon). We must now look at the characteristics of these two systems of law.
Incremental approach
The common law is said to be “inductive” in nature because it proceeds (at first) in an incremental way, laying down its rules on a case by case basis, inferring a general principle only after a plentitude of precedents justifies that inference and showing always a marked reluctance to reason far beyond what actual experience has demonstrated to be wise. The common law is therefore deeply democratic in its origins (because it arises from popular need), acutely logical in its reactions (because it responds to the preponderance of legal argument) and disdainful of legal theory (because it looks backwards to its precedents, not forwards to hypothetical instances).
The traditional common lawyer, although he recognises the supremacy of Parliament, in fact holds no great reverence for statute law. He treats it as the transitory command of a sovereign superior, to be interpreted strictly and precisely because of this, in a way not greatly different from the interpretation of a contract or a lease signed by mutually suspicious parties who had negotiated that agreement at arm’s length. He does not truly believe that statute law is a fitting place to enshrine the eternal verities of human experience.
Codification does not appeal to the traditional common lawyer. He is affronted by the platitudinous nature of most codes and believes that they shut off any further development of the law based upon unforeseen contingencies. He believes that they create problems of interpretation which can be cured only by a common law concept – the doctrine of binding precedent. To the common lawyer certainty in the law, more than abstract justice, is the pearl of great price.
Even equity, in seeking to ameliorate the harshness of the common law, has never sought (in modern times) to replace the doctrine of precedent and the rules of recorded discretion with unpredictable ad hoc decision-making. The traditional “common law” approach has seldom been better explained than by Bagnall J in a case about the equitable rights of a husband and wife in matrimonial property. After setting out the principles which he had derived from two previous decisions of the House of Lords, he went on to state:
In any individual case the application of these principles may produce a result which appears unfair. So be it; in my view that is not an injustice. I am convinced that in determining rights, particularly prop erty rights, the only justice that can be attained by mortals, who are fallible and not omniscient, is justice according to the law; the justice which flows from the application of sure and settled principles to proved or admitted facts . . . This does not mean that equity is past childbearing; simply that its progeny must be legitimate – by precedent out of principle. It is well that it should be so; otherwise no lawyer could safely advise on his client’s title and every quarrel would lead to a law suit.
– Cowcher v Cowcher [2] 1 All ER 943, at p948.
Deductive approach
In contrast with the common law of England, the continent of (Western) Europe has been directly or indirectly influenced by Roman Law. An alternative name for Roman Law is “the civil law” and the adjective “civilian” is sometimes used in this context. The origin of this usage is the Latin phrase jus civile (“civil law”). The word “civil” in this context should not, of course, be confused with the English (legal) uses of the word, ie “civil law” as opposed to “criminal law”; “civil law” as opposed to “military law”; and “civil law” as opposed to the law of the church.
Civil law (in the context we are now considering it) is said to be “deductive” in nature because it proceeds from an exhaustive code of propositions in accordance with which all subsequent experience must be judged. The civilian lawyers of Europe believe that accessibility, not certainty, is the pearl of great price in the law – “who may run may read” – the conception that the law should be available to all, easily understandable, and kept (so far as possible) out of the hands of a priestly class.
Precedent in civilian jurisdictions is not dispensed with (although it is more important in some countries than in others). But the idea that precedents should become strictly binding on future courts, or (still less) that an edifice of statutory interpretation should rise up out of a mound of case law to rival the code itself – these conceptions are considered to be fundamentally undemocratic because they usurp the function of the legislative power of the state. To avoid this state of affairs, judges are discouraged from giving reasons for their decisions, beyond a “legal logic [which] combines a certain wintry elegance with great brevity” (Bernard Rudden’s comment in Basic Community Cases).
The horror of uncertainty in civilian jurisdictions is lacking because the fear of litigation is less strong. A career judiciary is provided so that there are more courts, including inexpensive tribunals (staffed by younger judges) who can informally hear disputes involving small amounts. A broad “purposive” approach is encouraged towards the interpretation of words and phrases, and consistency is considered less important than ad hoc justice. It is not uncommon for codes to be deliberately vague and general in the choice of language, the better to allow the individual cases upon their merits. The contrast between litigation in common law countries and civil law jurisdictions has never been better explained than by Christopher Hughes in his book The British Statute Book (1957):
Supposing one wants to find what the law is on a particular point – for example, if one’s neighbours pigs invade the garden and eat the cabbages – how does one do it? In England the first step would certainly be to ask a lawyer, if one was in earnest about it, but failing that, if a good library was near, it would be possible to look it up in a legal textbook . . .
Then we look up the case, follow the references to other cases, and have some idea of the law. It is rather unlikely, on the whole, that we need to look at any statute.[2] And then we shall probably decide that the legal expenses will be so great that it would pay us to buy the neighbour half a dozen new pigs than to attack him on the subject of cabbages . . . But supposing the thing had happened in Germany or Switzerland or some Continental country . . . The Judge is not a great lord in wig and scarlet, he is probably a young fellow just down from university, a junior official. If we value the cabbages at ten shillings, that is by no means too small a sum to take to a court of law. The case is settled quickly and fairly, perhaps in the diametrically opposite way to which a similar case was settled a day or so ago. All this time there has been no mention of precedents, however. It is the Code which matters, and the Code is a little vague on the subject.
It is the belief of the civil law that codes create certainty and that the function of the judge is to make decisions which will be binding on the parties before him, but which will not attempt to supplement or to subvert the code in any way.
It is the belief of the common law that legislation (however precisely drafted it may be) always creates doubts and that it is the function of the judge to remove those doubts or (better still) to make legislation unnecessary in the first place. The common law judge attempts always to achieve the standards of the 17th-century Lord Chancellor, who intoned: “So let us decide cases here that they may be fit to stand with the wisdom of mankind when they are debated abroad.”
Both these beliefs are, to some extent, fictions, but it is true to observe none the less that there will be no other way in which the European Union can become a “union” in the truest sense of that word without developing further the system of case law which has already started to call itself “the common law of Europe”.
Footnotes
[1] The Scottish law lords were Lord MacMillan and Lord Thankerton. The English law lords were Lord Buckmaster and Lord Tomlin. The Welshman (and, therefore, an English law lord) was Lord Atkin. The case was a Scottish case, but the tort of negligence is the same in both jurisdictions.
[2] Nowadays the litigant (or his adviser) would have to look at a statute, although he would probably find it less helpful than the cases: see the Animals Act 1971.
