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The chief characteristics of the English common law


Many of the essential features of the English common law, and indeed, many of these characteristics were exported from the sixteenth century onwards to the colonies which English explorers founded (or conquered) round the world. So this legal tradition became the foundation of the law in many parts of the world. This 'common law world' includes today most of the United States and Canada, Australia and New Zealand, and the countries of the Indian subcontinent, as well as other former British colonies.

So what are the chief characteristics of the English common law tradition? The first is that much of the law has been declared by the judges in the very course of deciding cases. The central court of the modem English legal system - the High Court of Justice - is the direct descendant of a number of old courts, some of them dating back to the twelfth century, which were never created by a deliberate act of law-making. They were created, or grew up, in order to solve pressing practical questions - to dispose of arguments, to 'solve disputes, and to suppress violence and theft. As they developed into what we would today recognize as courts of law, they actually created the law as they went along. Eventually their decisions began to fall into regular and predictable patterns, people began to take notes of what the judges were deciding, and in due course there emerged the modern 'law reports'. A substantial body of English law was created in this way, and some of it remains in force to this day.

For several hundred years, English judges have been able to refer to law reports - that is, to reports of old decisions - to help them decide new cases. Even where the new cases are not quite the same as the old ones, the law has often developed by extension or analogy to the older decisions. In modern times, this practice of using old decisions to help decide new cases has come to be known as the doctrine of precedent and a number of rules have been developed by the courts as to the operation of this doctrine. For example, actual decisions are more important as precedents than obiter dicta - casual remarks by the judges not directly in point. Also, the decisions of higher courts are more authoritative than the decisions of lower courts - an important means of ensuring that lower courts and judges actually observe the law in a uniform and disciplined way.

Although many modern countries of the Roman or 'civil law' tradition have to some extent now developed their own doctrines of precedent, there is still a very large gap between them and the countries of the common law world in this respect. The "reasons" given for decisions by the judges in common law cases are mostly much fuller and more detailed than those given by judges in civil law countries.

It is true that in modern times the common law made by the judges has

often been changed - sometimes completely remodelled by new legislation, that is to say, Acts of Parliament and laws by Ministers under powers given to them by such Acts. Today, it is increasingly being changed by European Community laws too. But another major difference between common law countries and civil law countries is that in the common law world the main parts of the law have never been reduced to the form of a code, while the modern civil law tradition is strongly dependant on one or more codes of law - that is, legislative statements of the law, usually in abbreviated form, which declare the main elements of the law on a whole subject - such as, for example, the criminal law, or commercial law.

In sheer bulk modem legislation is no doubt outstripping the common law, but naturally enough the common law tended to deal with more essential and basic legal issues than much modem legislation. The common law was the "first" part of the law to be created, and the first part of the law in any society must necessarily deal with essentials. Naturally the common law evolved the basic principles of the criminal law - it was the common law which first prohibited murder, violence, theft, and rape. Similarly, much of our basic property law was first laid down by common law courts, and so was the law of civil liability. The law of contract and the law of torts (or delicts, or civil wrongs - for example, trespass, negligence or libel) were very largely created by the courts out of the simplest of ideas - that it is wrong to harm or injure others. Although much of this law has been amended and qualified in many different ways in modern times, the modem lawyer tends still to see the common law as the central repository of legal ideas and principles. In this respect his basic way of thinking about the law is different from that of his civil law col- leagues, who tend to see codes as the central source of authority in the legal system.

Closely related to the authoritative status of previous decisions, is the fact that in the common law world, the judges have a peculiarly high status themselves. In the civil law tradition, judges do not generally enjoy such a high status, and it is the jurists, or in modem times the law professors, who are regarded as 'oracles' of the law. In England itself, another tradition is today always observed, namely that the judges are appointed exclusively for high professional competence from among the barristers who practise before the superior courts. One other characteristic of the traditional English common law has come to be borrowed (in some shape or form) by many modem states, and that is the use made of the jury. Traditionally, the English conunon law jury is a group of twelve citizens, randomly chosen, who decide on guilt or innocence in serious criminal trials. The jury has often been thought to be a major obstacle in the way of any government bent on tyranny or oppression, because it stands between prosecutors and the accused person. The role of judges and the jury in modem England are dealt with in more detail later.

Another outstanding characteristic of the common law which deserves a few words is that a trial in the common law world is not a general inquiry into what has happened. Surprising as it may seem, it is "not" the function of a judge to ascertain the whole truth about the case in hand. His job (and the jury's job in criminal cases) is to decide between the assertions and claims of the parties in front of him. This is what common lawyers mean when they say that a trial is an 'accusatorial' process and not an 'inquisitorial' one. A criminal case is a contest between prosecution and defence. The prosecutor is one party to the case, and the accused is the other party. A criminal trial is based on a charge made by the prosecution which it is for the prosecution to prove. This means that the accused will not be asked any questions in court, unless he voluntarily chooses to go into the witness box and give evidence. Indeed the defence in a criminal case need not say anything at all; the accused (or his lawyer) may, in effect, say to the prosecution: 'Prove your case if you can.' This is the much vaunted 'right to silence' of the English common law.

This concept of the trial as a contest between two contending parties is deeply ingrained in the common lawyer's make-up, and there is no doubt that the accusatorial system has great strengths. Above all, it preserves the appearance of judicial impartiality. Common lawyers believe that judges who question the parties or their witnesses too much are descending into the arena of battle themselves, whereas they should stand aloof from the questioning, simply listening and observing, and finally making up their minds. It must be admitted, though, that an accusatorial procedure depends heavily on the presence of competent barristers to present the case and make the arguments.


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