Common Law Research Paper

1. Historical Development In England

While the common law is seen to originate in the everyday practices and understandings of the social world, its growth from the twelfth century took place in the context of dual, linked processes: the progressive consolidation of central government, and the gradual emergence of a specialist legal profession. This growth was realized through the discursive formulation of ‘law’ in the pleadings of lawyers and the judgments given in the Royal courts. It was associated from an early stage, and remains associated today, with one primary assumption and a distinctive method. The assumption was that the common law sought to realize and secure the practices and understandings of every-day life (immemorial custom). The strength of this assumption can be illustrated through numerous examples, including: the continuing invocation of the reasonable man in arriving at the appropriate standard of care in respect of claims arising from civil wrongs (tort); the care taken to ascertain normal business practice in the area concerned when judging commercial disputes; and the deference accorded to the customs of conveyancers by courts dealing with property disputes. The method distinctive to the common law lay in the procedure under which lawyers recovered the rules to underpin their arguments, and judges to justify their decisions, from the records of earlier judgments. This procedure—the doctrine of precedent—was made possible by the maintenance from an early stage of semi-official written records (the Year Books) and subsequently sustained by private series of reports before official law reporting became institutionalized. Consistency in decision-making was reinforced by the understanding that courts should, wherever possible, follow their own previous decisions and were obliged to follow those of courts superior to them in the judicial hierarchy (the doctrine of stare decisis). This procedure can be contrasted with the mode of decision associated with the continental civil law world under which the judge seeks to ground a decision in an authoritative, ultimately codified, text.

These working practices which fashioned the common law were facilitated by the close relationship prevailing from medieval times between the judges and the specialist groups which ultimately became the legal profession. Notwithstanding the strong historical link between adjudication and the consolidation of government, in England there has never been a career judiciary. The higher ranks of the judiciary have been recruited exclusively from the legal profession, with appointment to the ‘bench’ representing the ultimate career stage of the successful lawyer. While some elaborate ritual, including the conferment of knight-hood in the case of the higher judiciary, marks the transition from barrister to judge, and some formal distance is subsequently maintained between judges and their former colleagues, judges remain socio-logically very much part of the professional group from which they emerge. They continue to belong to long-established networks of information exchange and support—often crossing generations—begun in the great private schools, continued at university, and subsequently prevailing in the collegiate groups to which barristers belong (the Inns of Court). So the courts can be just as easily seen as the apex of the legal profession as a specialized branch of government.

The common law, developed in the King’s courts through resort, to precedent, has traditionally been contrasted with two other sources of law. The first of these has been described by legal historians as arising directly out of the formal working practices of the King’s courts. These were characterized from an early stage by procedures requiring anyone who sought redress to bring the claim within one of a limited number of elaborate written formulas (known as writs). If some mistake were made in the pleadings, the claimant would be denied his remedy. Ensuing direct appeals for help to the King, which such apparent injustices gave rise to, led to the growth of a parallel remedial jurisdiction presided over by the Lord Chancellor. This jurisdiction—known as equity had a distinct body of doctrines, rules, and practices, and was long administered in separate courts.

Both the common law and equity evolved alongside, and are contrasted with, statute law—rules promulgated by the sovereign. While progressively larger areas have become at least partially regulated by statute— notably in the fields of crime, commercial law, and property—a comprehensive legislative scheme of the kind introduced through the great continental codes of the eighteenth and nineteenth centuries has never been attempted in England. This more limited role and reach of legislation provides a further contrast with the civil law regimes of continental Europe.

The ‘re-discovery’ of Roman law in Italy during the eleventh century is generally presented by historians as having a limited effect on the growth of the common law in England, but England was in no sense isolated from this learning. Some of the clerics who accompanied William I to England were distinguished as scholars of Roman law, so Justinian’s great Digest was well known there from an early stage. Holdsworth (1909) also makes it clear that Bracton, a senior judge writing in the mid-thirteenth century, used Roman law to fill the gaps left by his extensive repertoire of case histories. While Roman law provided part of the intellectual climate within which a unified legal order evolved in England during the mediaeval period, its use as a direct source was limited. Even during the English Renaissance, the legal historian Maitland (1907) notes that the common law was still characterized by ‘an amazingly continuous persistence of medieval doctrine.’ He attributed this durability to the presence of the collegiate groups—the Inns of Court—within which English lawyers associated. He saw the medieval Inns as ‘schools of law’ which provided arenas of communication within which young lawyers were taught and their seniors formula-ted a coherent repertoire of legal doctrine. He wrote. ‘What is distinctive of mediaeval England is not parliament, for we may everywhere see in Europe assemblies of estates … but the Inns of Court and the Year Books that were read therein, and we shall hardly find their like elsewhere.’ By the time of the great continental codifications of the eighteenth and nineteenth centuries, which were closely informed by Roman law, the evolving understandings and practices of English judges and lawyers were already part of a largely autonomous, differentiated legal order. By then the common law tradition was too well set to be disturbed.

2. Geographical Diffusion Of The Common Law

While originating in England, the common law has undergone wide diffusion as English settlers carried it with them abroad and government at Westminster imposed it upon annexed or protected territories in the course of colonial expansion. Across India, North America, Australasia, and considerable areas of Africa and Asia, the common law remains today a significant component, linking together a range of independent legal orders. Following the now ancient precedent of the USA, most former colonies have retained significant elements of the common law, justifying the shared label of ‘the common law world.’ But the sheer diversity of contemporary arrangements within this loose association inevitably makes any generalization hazardous.

English settlers establishing colonies overseas took with them the general law of England as it stood at the moment of first settlement. By this means, the common law was established as the foundational law of the USA and of those regions of what became the British Commonwealth which were subject to settlement. In these cases, very little recognition was initially given to the existing laws and customs of indigenous peoples. In those further territories which were conquered, annexed, or declared protectorates as the British colonial empire subsequently expanded, the statutes of general application, common law, and doctrines of equity in force in England at the time were typically imposed by Order in Council from Westminster. In these latter cases, notably in India and Africa, early recognition was given to diverse local legal orders encapsulated in the course of colonial expansion. In the case of Africa, this recognition extended to indigenous dispute institutions. Elsewhere, notably in Canada and Australasia, recognition of the prior arrangements of indigenous peoples was postponed well into the twentieth century.

Once English law, including its major common law component, had been received in a colony, it remained in force until repealed or modified by the local colonial legislature or courts—or by the overarching authority represented by Parliament at Westminster and the Privy Council (the ultimate appellate tribunal of the Empire). These initial linkages between the metropolis and the colonial world have had variable duration. In the case of the American colonies they were severed early on by the Declaration of Independence. During the twentieth century they progressively disappeared in the case of self-governing Commonwealth countries; but some former colonial territories have chosen to retain a final appeal to the Privy Council, and a very few colonies still remain.

Beyond the impetus given by the immediate necessity of explicit constitutional provision, the ‘fresh starts’ generated by the colonial enterprise resulted in vigorous, eclectic localized growth for the common law. In these new local contexts, the energy to attempt rationalization, even towards codification, was per-haps greater than in the metropolis. Major initiatives included the codification of wide areas of private law and the criminal law undertaken in India; the Indian Penal Code was subsequently reused in modified form in several other colonial territories. In the USA, with the particular problem of its numerous private law jurisdictions, a general attempt at rationalization has been the American Law Institute’s Restatement of the Law. This initiative, now in its third generation of restatements, has brought together judges, lawyers and professors in the preparation of an agreed statement of common law across the state jurisdictions. In the same context, the great American law schools have, on the whole, self-consciously attempted to present an overall view of the common law in their teaching and research. Elsewhere across the post-colonial world the superior courts in different jurisdictions have become increasingly attentive to each other’s formulations, indicating explicitly in their judgments that they are working together on a shared overarching fabric which is in the widest sense a common law.

3. Theorization Of The Common Law

Attempts to ‘theorize’ the common law, in the sense of drawing together rules and procedure for the purposes of exposition and commentary, were made from a very early stage. Holdsworth (1909) even, proposed that Glanvil’s compilation, prepared sometime towards the end of the twelfth century, ‘marks the true beginning of the common law.’ Judge Bracton’s great treatise, compiled on the basis of 2000 cases which he had collected from the plea rolls, followed in the mid-thirteenth century. Both Glanvil and Bracton were deeply involved in what was becoming specialized, legal administration and for the remainder of the medieval period the common law continued to reside in practice, receiving discursive formulation only in the judgments of the courts and in authoritative commentaries. All the great legal texts of the period were prepared by practitioners whose learning was acquired through their work and in the context of their specialist associations, the Inns of Court.

Just as native legal theory in the medieval period concentrated on parochial commentary, that of the early modern period continued to focus largely on the immediate practicalities at hand. During the constitutional crisis early in the seventeenth century, Chief Justice Coke eloquently prioritized the relative authority of judges, King (he ‘hath no prerogative but that which the common law allows him’) and Parliament. But Coke’s arguments were not distanced speculation; rather those of a practical man, the holder of high office seeking to justify his position in the urgent context of struggles for power.

Prior to the mid-eighteenth century the common law had never been the subject of exposition and research in the English universities. English university teaching of the common law can be said to begin with the lectures which William Blackstone, the first Vinerian Professor, delivered at Oxford in 1758, and which were subsequently published in his famous Commentaries (1765–69). The Commentaries took more the form of popular exposition than scholarly treatise; but the account he gave provided a framework that would remain readily recognizable even 200 years later. In this work the common law takes pride of place as the law by which ‘proceedings and determinations in the king’s ordinary courts of justice are guided and directed.’ The validity of common law doctrines, ‘depending on immemorial usage for their support,’ is determined by the judges. In reaching judgment, ‘it is an established rule to abide by former precedents where the same points come again in litigation.’

It was only in the early nineteenth century that a body of specifically legal theory, focused on the common law tradition yet distanced from practice, began to develop in England. This body of theory links law firmly to government and maintains a consistent focus on adjudication. The link between government and law is established at the outset in the work of John Austin, the first Professor of Jurisprudence at University College London. In The Province of Jurisprudence Determined (1832), Austin presents law as the command of a sovereign directed towards members of a society in a ‘habit of obedience,’ with failure to comply being met with ‘sanctions.’ That central association safely in place, English jurisprudence turned to focus—virtually exclusively over the next 175 years—on providing theoretical foundations for adjudication.

The first modern attempt to provide a general theory of adjudication was made by Henry Maine in Ancient Law (1861). In this work, taking a broad, comparative, historical sweep, he insisted on locating the core of law in adjudication and in the emergence of rules under-pinning judicial decision making. He began by map-ping out a broad transition from small, kin-based groups to larger, territorial units. The very origin of social life was identified in the steering role exercised within a group of kin by the senior male agnate. These old patriarchs made decisions on an ad hoc basis; no consistent rules underpinned the decisions they took, yet government was supposed to be by adjudication by the senior male, before whom all disputes were brought. In the form of society that followed, numbers of these small groups of agnates became clustered together under chiefs, but the (sometimes fictional) assumption of shared kinship remained the basic organizing principle. Then came the territorial stage, in which members identified themselves through their common occupation of a defined tract of land, rather than through kinship. Around the end of the second stage and the beginning of the third, ‘law’ developed as rulers began to pronounce the same judgments in similar situations, providing their decision-making with an underlying set of rules. Later in the development of territorially-based societies, the settlement of disputes fell in to the hands of a specialized elite, who alone had access to the principles to be followed in their resolution. As Maine wrote: ‘What the juristical oligarchy now claims is to monopolize the knowledge of the laws, to have the exclusive possession of the principles by which quarrels are decided.’ There followed the ‘era of codes,’ and so on; but we can leave the developmental process at this stage.

Several important features are clear from this summary. First, there is the focus on dispute resolution and the foregrounding of a particular mode of intervention. For Maine there were no structural changes in the dispute settlement process over the fundamental stages of societal development. From the senior male agnate onwards, disputes were resolved by decision, handed down by a third party; there was no suggestion of negotiatory modes of settlement giving way to processes of third-party adjudication. Second, the presence of a normative basis for decision-making was the key attribute of law for Maine, and the emergence of this feature heralded the transition from the prelegal to the legal world. Third, there was the later development of specialization as legal rules became separated off from other rules operating in society. So, for Maine, social life is the product of ‘government,’ and the key variables lie in the identity of the third parties responsible for adjudication and in the evolving criteria underpinning decisions.

After Maine, the perfection of theories of law as adjudication occupied the jurisprudence of the common law world through the rest of the nineteenth century and much of the twentieth. Much of this scholarship was generated in North America where thoroughgoing re-examination was made of the doc-trines of precedent and stare decisis. The greater part of this work remained within the traditional commentary mode of legal scholarship, exemplified by Goodhart’s now classical attempts to refine the doc-trine of precedent (1931). More ambitiously, scholars like Frank and Llewellyn of the legal realist school drew on sociological perspectives in questioning vigorously whether these doctrines actually operated in the manner claimed in native legal theory. They indicated the relative freedom of judges to distinguish previous decisions they did not want to follow, suggesting that rules were drawn from the repertoire to justify desired outcomes, as opposed to determining what those outcomes would be. This iconoclastic strand survived on to the end of the twentieth century in the work of the critical legal studies movement.

One notable attempt to escape from the grip of adjudication, and to think about law unconstrained by the institutional shapes of the modern state, was made by Hart (1961). Rejecting Austin’s (1832) command theory as simplistic and in some respects inaccurate, Hart’s elucidation of law lays central emphasis on rules. One essential category of these is made up of ‘primary rules’ imposing obligations. The distinguishing mark of such a rule is the seriousness of the pressure to confirm to it ‘Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.’

While Hart concedes that a society might exist with primary rules only, they alone do not constitute a legal system. For the step from ‘the pre-legal into the legal world’ to be made, these primary rules must be supplemented with ‘secondary rules’ of three kinds: rules of recognition—making it possible to identify what the primary rules are; rules of change—providing for the alternation of primary rules when the need arises; and rules of adjudication—empowering certain people to determine whether, on a given occasion, the primary rules have been broken. Most systems will also contain other secondary rules authorizing the application of penalties where primary rules are violated; but this further refinement is not seen as essential to a legal system.

Through the device of these secondary rules, Hart (1961) appears to disassociate his model from any parochial institutional content and invest it with considerable value for cross-cultural purposes. How-ever, the escape seems to be illusory, leaving Hart’s account of law firmly grounded in the institutions of the state and state-sponsored adjudication. He himself recognizes that the three categories of secondary rules imply, and require, the presence of legislative and adjudicatory agencies. While Hart struggled to marginalize adjudication by identifying law as an affair of rules, subsequent exegeses of his work hastened to represent his core idea as a theory of adjudication. It is significant, too, that his most influential successor, Ronald Dworkin, has consistently refocused the task of jurisprudence on understanding and justifying judicial decision-making.

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