Common Law Civil Law Traditions

Revista Alicantina de Estudios Ingleses, 2015

American law and English law belong to the same legal tradition, the common law, characterized by a case-law system based on judicial decisions and the rule of precedent. There are indeed common features between the American and the English common law systems. There is a common language with close expressions, but also similar concepts, principles and procedures. But how common are in fact the American and British legal systems? This paper aims at finding some possible answers through a legal and linguistic analysis of some US and UK superior court decisions.

A brief glance at the history of English Legal System in the past ten centuries from birth of common law till-date

Louisiana Law Review, 2003

2011

Judicial Review Across the Common Law World: Origins and Adaptations (Swati Jhaveri & Michael Ramsden, eds) (Cambridge University press, forthcoming, March 2021), 2020

In the field of comparative public law, the focus has typically been on constitutional versus administrative law. A range of explanations are offered for this imbalance. Primarily, there is a concern that meaningful comparison may not be possible in the field of administrative law: given the nexus of the design of administrative law to the setup of the state in which it operates, there is too much variance across systems. As observed by Harlow & Rawlings, “[b]ehind every theory of administrative law there lies a theory of the state”. However, these debates about the barriers posed by context for comparison persist even in the field of comparative constitutional law, manifesting primarily as a concern that the parochially value-laden norms that make-up a particular jurisdictions’ domestic constitutional law are not amenable to comparison or transfer. However, comparative constitutional law has been able to overcome these hurdles to thrive much more strongly as a field of study as is evident from the proliferation of research in the field. This may be changing. There has been renewed interest in undertaking broad comparative administrative law studies across a wider range of jurisdictions on a wider range of issues. While the field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice, the scope of comparison remains relatively narrow in the specific context of comparative common law studies. This Chapter analyses various existing comparative endeavours in the common law world, with a view to looking at how the field can progress further in its comparative work. It proposes that one area ripe for further work is to further refine our understanding of common law systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems which share a range of characteristics: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the executive branch). The aim of this volume is to push back on this observation that common law systems tend to coalesce around this group of concepts and ideas. There is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence (in this case divergence from English law roots of administrative law). The contributors to this volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate, not just the continuing impact of the English law transplant in a multitude of common law jurisdictions that were recipients of English law, but the broad range of causal factors and agents that influence the development of the common law. This conversation will be assisted with input from the perspective of a wide range of common law jurisdictions, including those outside the traditional focus of comparative administrative law in the common law world (outside Australia, New Zealand, England, USA and Canada to include South Africa, India, Singapore, Malaysia, Israel, Bangladesh, Scotland, Kenya, Republic of Ireland and Hong Kong). Such a conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics. This Chapter first engages with these restrictions in existing studies. It then moves on to look at specific questions that may be used to explore the degree of difference and diversity in approaches to judicial review in the common law world. The chapter concludes that multiple categories of common law systems are apparent once common law systems are studied from the perspective of divergence. While common law systems may share a set of vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated. The conclusion maps out a possible typology of common law systems.

Northern Ireland Legal Quarterly, 2020

This article concerns the survival of the common law in the United Kingdom over this past century, and its prospects for the next. Why has the "unwritten" common law survived for so long, and for how much longer will it do so? This survival is in many ways quite remarkable. The changes over that period, while perhaps tamer than in many other parts of the world, have nonetheless been huge. It is a puzzle, then, to find at the end of the 20 th century a legal system expanded far beyond anything there was in earlier centuries, in many respects utterly changedand yet with an "unwritten" core still there, still treated with respect. The torrent of legislation through which parliament continually makes and re-makes the legal system has left the core of the common law, if hardly untouched, at least intact and flourishing. Indeed, the common law is often treated as the defining characteristic of the legal system of which it forms part, the thing that most truly indicates its nature and identitythese systems are "common law systems", even though most of their law is statutory! The area of pure case law is small when we look at each system as a whole, yet somehow this small area is treated as the core, as somehow fundamentally important. THE PUZZLE To see that the survival of the common law is indeed a puzzle, and in need of explanation from legal historians, consider the perspective of reformminded lawyers at the middle of the 19 th century. To them it was obvious not merely that the common law should be swept away but that it inevitably would. So someone like Vaughan Hawkins, a minor intellectual at the Chancery Bar at mid-century, could spice up his case for codification 1 with arguments that the case law system was already on the verge of collapse. Now it is interesting to review the arguments of people like Vaughan Hawkins, because they are so believable, so entirely plausible. He gave excellent reasons for supposing that the collapse of the common law, if not exactly imminent, was nonetheless a highly likely medium-run possibility; and (unlike many of those who argued for codification) he had some quite serious analysis of the system of doctrinal law in his time. Of course, we have an advantage that he did not-130 years on, we know that it has not collapsed, and that it does not show any immediate signs of doing so. The question is, what is it about the common law that falsified Hawkins' arguments? How has it kept going so long? _________________________________________________  The debt this article owes to Brian Simpson's "The survival of the common

In 2015 the 800th anniversary of the promulgation of Magna Carta was celebrated Amongst the great number of initiatives for this event, Professor Mark Hill QC and the Reverend Robin Griffith-Jones have edited an interesting book, which gives a detailed account about the origins of Magna Carta, the social and political context of the time, and the religious background which forms the very foundation of the main principles of the Charter. As neither an historian of law, nor a specialist in public law, nor an expert in the field of law and religion, my essay discusses some aspects of the “global legacy of the common law”, whose origins, to my understanding, are closely interconnected with Magna Carta. First, I will depart from the assumption that one of the most important aspects of Magna Carta is the idea of law as a limit of the sovereign’s power. In reality, this concept was not new, nor was it peculiar to English law, as it had been developed on the Continent by the efforts of medieval jurists, but it was fixed in ‘black letters’ in Magna Carta at the end of a difficult period of controversies and it can be said that it is at the origin of the doctrine of the Rule of aw. Second, I will consider the process of codification of law taking place on the Continent between the end of the XVIII and the beginning of the XIX century and in particular the idea of Rechtsstaat, shaped on different basis than the conception of the Rule of Law in English law, which flows from the Magna Carta and continues to characterize, at various degrees, the common law legal mentality. Third, I will concentrate on the main legacies of the conception of law which underlies the doctrine of Rule of Law, focusing on some features which still connote the common law tradition as opposed to the civil law tradition: the idea of the primacy of the unwritten law over statutory law and the unity of jurisdiction; the attitude of judges towards the interpretation of statutes; the circulation of precedents in a vibrant legal tradition. At the end, I will draw some conclusions.