Common Law Chapter 2 Essay Example

This chapter covers considerable ground and refers to a wide range of features and concepts. Do not be concerned if it appears disjointed or seems to require an immersion in history: return to these features later in your study and they will become clearer.

Learning outcomes:By the end of this chapter and the relevant readings you should be able to:  

identify several key features of the English legal system that differentiate it from others discuss the principles and objectives which, in your view, ‘ought’ to guide legal processes begin to use fundamental concepts and questions as reference points in further reading have an opinion on the importance of history in understanding modern common law systems outline the difference between common law and civil law (Roman law) traditions explain the difference between the adversarial legal process of English law courts and the inquisitorial process that operates in many other European countries.

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Common law reasoning and institutions 2 The English legal system and the common law tradition



Judging the operation of the legal system The key task is ‘understanding’ Any legal system is a developing and changing social arena. The key institutions and processes of civil and criminal justice that comprise the contemporary English legal system have developed and changed over time. What orientates our perspectives? What knowledge, for example, of history is required – do you need to know lots of legal history? The common law mode of adjudication is, of course, inescapably historical, working with past decisions to find an appropriate outcome.

The development of the common law tradition has reflected social, economic and cultural forces. The structure, organisation, and decision-making processes involved in the English legal system were the product of a diversity of social and economic forces. But there have also been a set of cultural norms, rules and regulations which strive to create and maintain a specifically ‘legal’ arena for decision-making and dispute handling.

At any one time there are obvious trade-offs: objectives may clash and goals may be pragmatically refocused. For example, you may see it argued that ‘the goals of promoting justice and fairness must be considered within the constraints of available resources’; in other words to make the economic cost of justice a crucial factor. However, what does that mean for arguments that citizens should have a ‘right’ to access justice, and if, for instance, they can not afford to pursue their (assumed) rights against a wealthy corporation (or the Government), then they ‘ought’ to have ‘legal aid’ to help enable them to do so?

The legal system is an area of normative† human activity and many people think that justice should not have a price tag. One important aspect of the legal system is its relationship to governmental power. The concepts of judicial review of government and the protection of rights of citizens are an expression of our views on how power ought to be exercised and how relations between individuals and between individuals and the state ought to be structured. But mere ideals or nice phrases in books are not enough.

A legal system does not operate independently of human actors, so the professional ideals (or as some would call them, ideologies), ethics and sense of justice and ‘constitutional role’ (to paraphrase the Anglo-American jurist Ronald Dworkin) of the legal actors is important. Above all, the activities involved are diverse and complex, yet we consciously try to interpret them as a coherent and understandable system. Partly, some suspect that we call it a ‘legal system’ not because it operates in a coherent and systematic way, but because we want it to work in a systematic and coherent way. †

Normative statements are about how things should or ought to be; how to value them; which things are good or bad; which actions are right or wrong.

Activity 2.1Read Martin Partington, ‘Law and Society: the purposes and functions of law’, Chapter 2 from Introduction to the English legal system (third edition) contained in your study pack for Common law reasoning and institutions (CLRI study pack). (a) What are the different functions of law that he suggests? (b) What is his distinction between ‘macro’ and ‘micro’ functions? Do you think these cover the whole functions we can identify for law? No feedback provided.

Go to your study pack and read ‘Law and society: the purposes and functions of law’ by Martin Partington.

2.1.1 Why ask ‘what is a legal system’?It might seem strange to begin by giving you some reading that questions what may seem obvious – after all, the preceding section assumed that we had a legal system. In the public’s perception, the legal system is often identified with the institutions and processes of civil and criminal justice. It is, however, much more. In recent decades, administrative law, or the calling to account of public officials by judicial review, has increased in importance and the areas of family law, commercial and company litigation and arbitration are expanding.


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2.1.2 A range of definitionsBut what makes this a system? The notion of ‘system’ implies interconnectedness, interrelatedness, coherence and consistency – yet the student’s first impression may be of great diversity, of a chaos of decisions and doctrines. The student soon gives up trying to present an overall picture: it can seem hopeless, given the experience of learning law as a mass of details that fit discrete areas but do not hang together. That feeling may be accurate: to a large extent, the English legal system has eluded conceptualisation and formalisation.

This does not mean to say that there are not definitions of what is law or opinions on what the point or task of a legal system should be. Rather, it means that there are many of them. Law is practical: it is concerned with making decisions. Law classifies, and to think like a lawyer is often to engage in elaborate systems of classification and to allocate items to those classifications. Law needs proof in order to make decisions on those classifications. Legal processes thus seek to demonstrate the authenticity of claims and to fix judgments to them. Thus, legal process tends to mix scepticism and claim – assertions from one side are matched with denials and counter-assertions from the other.

But the process is also pragmatic – there must be a legal decision; an answer; a judgment. Judges are not allowed to say, ‘I do not know’: they must give a decision. In the common law tradition, the judge is the bearer of the law: in a sense, its guardian or priest. The judge does not come to his or her task like some machine for carrying out a mathematical or mechanical process: the law is a human process, involving ethics and commitment to the task. In legislative activity, clear statements of rules are made for the good ordering of society.

Law, it seems, needs to be rendered visible so that the people accept that law rules and not men (that is the central idea of the concept ‘The Rule of Law’). But men, and in recent decades women too, staff the system, perform the institutional ‘roles’ and hold the ‘offices’. However, any attempt to give a single account of the ‘legal system’ tends to highlight one concern at the expense of the others. Consider the following: In one respect our whole legal system represents a complex of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity.

(From the American jurist Lon Fuller’s book The Morality of Law, revised edition 1969, p.9) Here Fuller defines the system in terms of an edifice of rules – rules purposefully created and designed to guide human behaviour. The difference between ‘law’ and ‘the legal system’ is often not made clear. Many writers slide between talking about the functions of the ‘law’ and the ‘legal system’ as if they are the same thing. Aubert, in In search of law (1983), for example, offers six functions of law:      

a means of governance a way of shaping the behaviour of the citizens a device for distributing resources and burdens in society a method of safeguarding expectations a method of dealing with conflicts and contributing to their solution an expression of ideals and values (the young Karl Marx wrote that ‘law was the people’s bible book of freedom’; the older Marx considered that law gave an ideological cover to a more oppressive social reality). But it is in the legal system that these functions receive their institutional reality.

2.1.3 How are interpretations and meanings established?Note: in the history of thinking about law and legal systems, there has beena series of dualisms. On the one hand we have the clear idea that law: 

is about coercion (law as sword). On the other hand, law:

is an expression of human values: law enables us to achieve human ideals and offers us a home (law as shield, or a refuge from misery, suppression and injustice).

Common law reasoning and institutions 2 The English legal system and the common law tradition A legal system can be seen as:

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instrumental – a matter of effective processes, allocating resources, resolving disputes (the legal system is a particular ‘technique’ of social action and engineering). On the other hand it is:

a reflection of our fundamental values, an edifice of principles and values, a statement of what a society is committed to (the legal system is a home, an answer to fundamental human needs). These perspectives may be borne in mind as we turn to the peculiarities of the common law tradition as reflected in the English legal system.

2.1.4 Are some legal systems better than others in ‘moral’ terms? That is, when we analyse how legal systems operate, can we rank aspects of their operation in terms of criteria that are really expressions of our desires for ‘justice’, fair play, or other political and moral considerations? When we are involved in education we want an imaginative grasp from ourselves and our students; personally I want passion, desire for justice, commitment and the dialectics of sorrow and hope. But I am also conscious that we have a pragmatic task: it is intellectually satisfying to explore the diversity of perspectives, but we have limited time and limited energy.

Our questioning is necessarily rather limited. However, whatever our theoretical inclinations, we accept that a legal system is a complex of operations, processes, human actions, institutions and ideals. Given that it is a human creation, we can ask if the legal system is a rational enterprise and what kind of rationality is involved. Many jurists argue that the legal system cannot be just any kind of purposeful activity: it must be rationally controllable, and the institutional operations should be understood not simply as ways of getting things done, but as ‘normative’. In other words, they should express values and be ethically guided. Furthermore, the rationality that runs through it should be humane – i.e. it should be oriented towards achieving justice.

What criteria could we use?Justice, however, is a contestable concept. Therefore we must ask a series of questions and keep asking them, for example:   

What principles ought to guide the legal processes? What objectives should be kept in mind? What ethical and professional ideals are involved? You are constantly asked to evaluate and think critically about particular institutions and processes. Your evaluations and criticisms should be made by reference to suggested objectives of the criminal and civil justice processes and the various interests that these systems are attempting to serve. In your reading of the recommended materials, therefore, a fundamental question that should always be at the back of your mind is:

To what extent is a particular institution or process achieving broad objectives and/or serving the interests of those involved in the process? Within the criminal justice process, for example, some of the more important objectives suggested are:

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to punish wrongdoers to protect society to deter people from breaking the law. However, at the same time it is an important requirement that the police, prosecutors and judiciary should act fairly and consistently.

page There are also obligations:   

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to the accused to victims to the wider society to process cases speedily not to interfere with civil liberties. What of civil justice? The Victorian novelist Charles Dickens once said that ‘the one great principle of the English Law is to make business for itself’ (Bleak House, 1971, p.58), and many complain today of the excessive cost and complexity of the process. In diagrammatic form we can suggest that: Within the civil justice process, key objectives are: to provide the means by which civil disputes can be resolved in accordance with principles of fairness and justice.

The administration of civil justice, however, also requires: an efficient, cost-effective system in which cases can be disposed of fairly speedily.

Meanwhile, those members of the public involved in disputes require: access to affordable justice of a high quality.

It will be clear that many of the objectives of both the criminal and civil justice system appear to conflict and that a balance must be found between competing requirements. For example, in criminal cases, the desire to apprehend the guilty may conflict with the need to protect civil liberties and observe due process considerations. How is this balance to be found? How do we know if a satisfactory balance is operating?

This is usually difficult. In civil justice, for example, the majority of litigants settle their cases out of court in order to achieve a speedier and less costly resolution of their case. Is this a success or failure of the civil justice system, and how do we evaluate the extent to which these outcomes are just and fair?

SummaryWe began this chapter by looking at some of the broader issues underlying a study of the law: in particular what the purposes of the law are, and how we can judge whether it is achieving them. This provides a foundation for the more detailed consideration of the nature of the English legal system as the original common law system.

Common law reasoning and institutions 2 The English legal system and the common law tradition



The common law tradition and its influence upon the English legal system Essential reading¢

Please read Chapter 3: ‘The University of London and studying English law or the common law tradition’ by Wayne Morrison in the Studying English law with the University of London guide. As an introduction to the constitution please read ‘The UK constitution – a very brief history’, by Hilaire Barnett in the Public law study pack. There are various general features and key concepts that you should master.

You should be aware of the differing sources of law and the particular importance in order to understand the English legal system – of the distinction between ‘common law’ and ‘civil law’ (or ‘Roman law’, as it is sometimes called) traditions, and between the adversarial and inquisitorial methods of investigation; you should also have an understanding of the development and meaning of ‘equity’.


2.2.1 What are legal ‘families’?The term ‘legal families’ refers to coherent similarities that group together the various legal systems in the world into distinguishable ‘traditions’ or ‘families’. Some of these key features derive from religion (for example, in the Islamic or Talmudic legal systems); others are associated with particular political and social ideologies (for example, common law, civil law or Roman law, and the now declining socialist law). These families are not rigidly distinguished from each other but there are sufficient significant differences to define them, based on the following basic characteristics:    

objectives of the legal system sources of law legal reasoning and methodology structure of pre-court and trial proceedings.

2.2.2 What makes the English common law so distinctive?There is a long tradition stating that English law has distinctive features that lend it a special quality and its institutions a particular claim to ‘justice’ and effectiveness. Many of these claims appear today to be overstated, but there are a number of features to note that have continuing relevancy. The following list† is adapted from R.C. Van Caenegem’s Judges, Legislators and Professors: Chapters in European Legal History (1987).

The importance of the judges and the lack of prominence of academics (jurists) By contrast, in Italy, where the academic study of the Roman digests laid the foundation for an intellectually rich study of law, professors of law were the spokespersons of law, holding out interpretations of the corpus juris.† In England, from the second half of the twelfth century down to the great reforms of the nineteenth, the judges made and controlled the common law, regarding legislation as an interference and a nuisance and bothering very little about jurisprudence. (p.69) †

Note: you may find this list disjointed at first reading, but it is worth returning to it after you have ventured through the later topics in the syllabus. Corpus juris refers to the collection of laws, put in systematic order. The term usually denotes the collection of Roman law.

The idea that English common law reflects national identity

This implies something greater than the mere fact that each country has its own laws. It claims there is something unusual about the development of the English legal system that confers a special kind of value upon it. Sometimes this is referred to as the common law ‘reflecting the pragmatic spirit of the English’, or ‘the tendency to rely upon common sense’.

As the famous American scholar Laski put it, in an exchange of letters with the judge and legal scholar O.W. Holmes, the English mind: is full of real insights, can never concentrate on any subject, never argue about it abstractly, is always driven to the use of a concrete illustration, is rarely logical and about eight times out of ten patently in the right. (Holmes-Laski Letters. (Harvard, 1953) p.303.)


University of London External ProgrammeBut was this mode of thinking elitist or that of a democratic spirit of the people? Van Caenegem says: Was this ‘judgement-finding’ in the common-law courts and the other central organs of justice democratic? Again the answer on the whole must be negative, although some doors were ajar for ordinary people. Certainly in the English judicial tradition there was nothing like the mass assemblies of the Athenian democracy. Popular justice like the people’s courts of the agora was unknown. Nor were the judges ever elected by the people.

They were appointed from the ranks of the successful serjeants at law†, an intellectual elite who had gone through many years of training and success at the bar and whose recruitment was at certain times limited to the sons of the aristocracy and the gentry. There was, however, a popular element in the jury (even though it was limited to landowners), for the judges had to put the important questions of fact to them, at least in the common law courts, and this had to be done in terms that were understandable to the layman and free from the esoteric jargon that judges and serjeants used among themselves.

Another democratic element was the openness of the proceedings, although it should not be forgotten that the dealings of the court were held in a very strange language – a medieval provincial French dialect – and were therefore quite inaccessible to all except a few dozen initiates. Also the very high cost of litigation to this day has been a severe hurdle for those who decide to take their case to law. Nor was justice easily accessible in geographical terms because of the excessive centralisation of the courts and their activities in London…

Another criterion of the democratic nature of a legal system is, of course, its cognoscibility†. On this point, the common law scored very badly, for it was and is uncodified, buried in a “myriad of precedent, that wilderness of single instances”, and even worse, in the bosom of the judges who guarded the unwritten fundamental principles of the common law, against whom not even clearly formulated statutes stood a chance – a situation remindful of the Roman patriciate† who kept the formulae of the law secret. Might the justices of the peace have provided a democratic element? Hardly…

serjeants at law – obsolete term for senior lawyers

cognoscibility – capability of being understood

patriciate – aristocracy

English law as a ‘seamless web’Classic common theory contrivedThe idea that there was always an answer, that law existed even if you could not immediately find it. For example, in reading the case of Donoghue and Stevenson, extensively discussed in Chapter Five, Lord Atkin first states that he has difficulty in finding ‘in the English authorities statements of general application’ covering the area discussed, which concerned whether manufactures of a product had a duty of care to consumers. So it did not look to at least two of his fellow judges that there was any duty.

However, he states: And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge…

Atkin goes on: At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care of which the particular cases found in the books are but instances. In other words he is saying that there must be a legal answer to the question, there must be ‘law’ covering the situation, even though the judges dealing with earlier cases had not written their judgements broadly enough so that a general principle could be seen. †

The rule of exclusion

In interpreting statutes or legislation†, the English judiciary adopted a rule that specified that one could not look at material beyond the legislation to determine its meaning. This has been a crucial rule used in interpreting statutes and many people have found it unduly restrictive, in that it can lead to results at odds with the stated intention of the politicians who enacted the statute.

You may note that the choice between interpreting a statute by reference to the language contained in the statute alone, or by using extrinsic sources, such as records of debates in the Parliament or committees, or records of what the framers of the bill intended it to mean, has been a fundamental tension in all common law systems. It has particular resonance in the questions of interpreting a written constitution. Should we interpret by reference to what we can historically show the framers had in mind, or should we give the words only the meaning that they can bear on their own? But then which time frame does one consider? The time the constitution was written, or now?

Common law reasoning and institutions 2 The English legal system and the common law tradition The lack of a written constitution This is a central concern of the Public law course but it also impacts generally on other areas of the law. Note the theory of parliamentary sovereignty, i.e., that Parliament is an absolutely sovereign legislature. Van Caenegem expressed the traditional view in 1987:

The theory of parliamentary sovereignty, i.e. that Parliament is an absolutely sovereign legislature, is built on two pillars. The first is that no parliament can bind a future parliament or be bound by a previous one. There are no laws that parliament cannot make or unmake and no consideration of morality or natural law can prevail against a clear statute emanating from Westminster.

The second is that no judge can condemn a law and refuse to apply it on the ground that it is incompatible with the constitution or the fundamental principles of the common law; that would be a usurpation of the legislative function by the judiciary. (Judges, Legislators and Professors, pp.21–22) Another consequence of this was the relative lack of judicial review. In the broad sense, judicial review means control by a higher judicial body (such as in appeal cases or review of executive discretion). In the narrow sense it means the control exercised by the courts over the constitutional character of legislation, implying the power of judges to annul laws (or stop their application) as being contrary to some article of the constitution.


Prosecution and verdict in criminal trialsThe jury trial – a body of persons sworn to give a true answer or verdict to some question – became the most distinctive aspect of the common law world. Historically, the idea of an inquest was used before 1066 in both England and Normandy, but was developed considerably after the Norman conquest of 1066 to become a key institution of the English system. In criminal cases, the prosecution of offenders in the English system lay not with any state official but with the jury of the venue, a jury of peers† of the accused.

The jury decided whether there was enough prima facie evidence to warrant a criminal procedure against the accused. Two juries were involved: one – a grand jury – decided whether to prosecute or not, while another − the petty jury − decided whether the prosecuted person was guilty or not. The twentieth century saw a marked decline in the role of the jury, the almost total disappearance of the jury from civil trials and a reduction in the number of criminal trials that involve a jury.

peers – equals

An uncodified lawThis is the clearest difference between English law and the continental or civil law system. There have been numerous movements to codify English common law but they have never succeeded.

2.2.3 A tradition dominated by judgesLegal education was seen as a practical affair, a matter of skilled pleading and learning the ways of the courts. In part this was a consequence of the minor role that jurists played in the common law. In the English tradition the judges are ‘the living oracles of the law’† (to use Blackstone’s phrase). Jurists – professors of law and of the theoretical study of law – have a marginal role. The English common law was the handiwork of judges and judges gloss it in future judgements. The continental European situation is the result of the central role of the interpretation of the code of the Emperor Justinian (CE 482–565). Roman-based legal science was the province of professors.

By contrast with the continent’s Roman-based legal scholarship, English law was based on custom, revealed by precedent; the judges, reconciling precedents in the practice of the courts, and not the jurists, were the oracles of the law. Young people who wanted a career in law did not go to a university to learn law-book texts and hear the professors’ interpretation of the meaning of those texts. They went instead to live in one of the Inns of Court, where they listened to barristers and judges and learnt the law by seeing it in action in the courts. To learn the law was to engage in an apprenticeship, witnessing the practice of the courts and learning the pleas.

Living oracles – this phrase is probably traceable to ancient times. In the Judaic tradition, the law was, on occasion, referred to as ‘living oracles’. Its divine character was reinforced by the idea that the law had been made known through angels. Blackstone here refers to the particular role of the judges in the common law tradition, whereby they decide in cases of doubt and are bound by an oath to decide according to the law of the land. Their judgments are preserved as records and it is the established rule to work with these former precedents when the same points come up in litigation.

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University of London External ProgrammeAs late as 1882 (when he became the Vinerian Professor at Oxford) Dicey set out his inaugural lecture in the form of a question: ‘Can English law be taught at the universities?’ He meant the question rhetorically, for he believed that not only could it be so taught, but that it must be in order to make it more rational, consistent and adaptable to new social developments. But there were many − and there still are some − individuals who consider that the common law is best learnt in practice and that university level courses are only a gloss on the real learning process.

The issue is apparent in a variety of guises: is a law degree to be seen as a preparatory course for entering the legal profession and therefore should it concentrate on the particular needs of the profession? Or should it emphasise wider, more general skills and be seen as a branch of liberal education? You may note that the University of London was the first university to create a Bachelor of Laws as an undergraduate degree in the common law. From the beginning, external students have been able to sit for its exami