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Common Law and Civil Jurisprudence

Daniel J. Castellano, M.A.


1. Historical Development of Common Law
2. Historical Development of Civil Jurisprudence
3. Common Law Jurisprudence in the United States
4. Critique of Common Law and Civil Jurisprudence

In the European tradition there are two great systems of jurisprudence: common law and civil law. Common law jurisprudence, which prevails in England and most former members of the British Empire, derives its authority from common judicial practice and received traditions. Common law is not necessarily codified or written, but like the English constitution, it is a pre-existing reality that magistrates must respect. Civil law, which derives from Roman law, holds sway over most of Europe and Latin America. In its modern form, it is always codified, but more essential to civil law is the notion that judges are bound by statutes, and they may only rule on particular cases without establishing general rules. Thus common law and civil law jurisprudence entail very different roles for the judiciary in shaping the content of law. It is this aspect of the two great legal systems that will be our primary object of study.

In common law countries, the judiciary contributes to the content of law, not only because the common law consists of judicial customs, but because of the fateful English innovation of stare decisis (“to stand by that which is decided”), also known as the law of precedent. By this rule, the judgments of magistrates are binding on lower courts and all future cases with similar facts. Judicial opinions in novel cases thereby gain great weight, as they may compel future courts to interpret common law and even statutory law in a similar manner. This form of jurisprudence has the advantage of uniformity of interpretation, but carries the danger of granting too much authority to judges in the shaping of law. Since all common law countries come from the English tradition, they all have the rule of stare decisis, so that the rule is seen as an essential feature of common law jurisprudence, though strictly speaking this is not the case.

Roman civil law, and the Church’s canon law which drew upon it, was originally a mere amalgam of past decrees, arranged by topic. These decrees often contradicted each other, and it was the work of legal scholars to determine which aspects of each decree was still binding. In general, a more recent law nullified an old law only when it explicitly contradicted the old law or carried implications that would render the old law void. Otherwise, the older statute was considered to remain in force. In the nineteenth century, most European nations sought to codify their laws, so there would be no ambiguity as to which laws were in force. From the Napoleonic Code of 1804 to the Pio-Benedictine Code of 1917, all civil and canon law in continental Europe was organized into written codes. Although this system had the eminent advantage of making the law clear, uniform and rationally intelligible, it placed plenary jurisdiction in the hands of the state, whose statutes could supersede even the most immemorial custom. Thus ancient usage could no longer act as a check on the whims of those now living, as do the customs enshrined in common law. The state had free rein to mold society as it saw fit; even the constitutions of Europe were written as legal codes, to be amended by legislatures much like a statute.

If the civil law system seems to give too much power to the legislature, the common law system may be faulted for giving too much power to the judiciary. This fault of the common law system is not in common law itself, but in the principle of stare decisis. Common law, being a received body of customs, has the advantage of restricting the power of the state, including judges, but this advantage is undermined by stare decisis, which gives judges the ability to effectively define what the law means in their opinions, since all similar cases are expected to be judged similarly. Stare decisis allows a general rule to be established in a particular case, and establishing general rules is an essentially legislative act.

In civil jurisprudence nations, by contrast, a judge’s decision only applies to the particular case at hand. In France, for example, a decision often consists of little more than a statement of the verdict, followed by citation of the relevant statutes, without any elaborate interpretation. Other courts in future cases are expected to appeal directly to the statutes, not a previous court’s interpretation of the statute. In some civil law countries, such as Italy, there is an expectation that the lower courts will interpret the law in the same way as the Supreme Court, but there is no strict requirement that they will do so. Indeed, there would be no way to enforce this, as case law does not constitute a formal precedent; only the statutes passed by legislators are binding.

For all their shortcomings, both the common law and civil law systems have legitimate reasons for existence, having arisen out historical solutions to political, social and legal problems. By sketching an overview of their historical development, we may gain some insight into how their primary features came into being, and then determine which of these features are suitable to actual society and to an ideal state.

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1. Historical Development of Common Law

Common law jurisprudence is not unique to the English tradition, but existed in virtually every society that had not yet developed codified laws or legislative bodies. In ancient Athens, for example, case law was determined by common custom, and laws could be changed only by a judicial commission, as there was no legislature as we know it. Unwritten legal customs could not be changed by the popular assembly, as that would have been considered a usurpation. Indeed, Aristotle observed in the Politics that unwritten law was considered more sovereign than written law:

But laws resting on unwritten custom are even more sovereign, and concerned with issues of still more sovereign importance, than written laws; and this suggests that, even if the rule of a man be safer than the rule of written law, it need not therefore be safer than the rule of unwritten law. (Bk III, xvi, 9.)

The immutability of unwritten customs was the safest guarantee against arbitrary rule by men, whether kings or judges. The procedure for amending written law involved all three branches of government: the deliberative popular assembly, the executive, and the judiciary. Six executive officials, the thesmothetai, prepared an annual report recommending legislative changes. The popular assembly was not a legislature, but a deliberative body that discussed the report and nominated jurists to serve as nomothetai, before whom new legislation was argued. Athenian judges could change the law only when acting by appointment of the popular assembly.

Under the constitution of Solon, Athenian law courts were highly democratic, as judges were chosen by lot from among the people. The popular law-court, or dikasterion, consisted of hundreds of such judges who voted by casting a pebble in favor of one verdict or the other. They judged according to their sense of what is right or just (dike), as was received by custom. Often the right and just course of action was indicated by an explicit written or oral principle received by custom. These formulae were nomoi or “laws,” which were not mere legislative acts, but established principles of social behavior. As the nomoi represented the cultural heritage of the city-state, they were amended only with grave circumspection.

Among the Jews and Muslims, law also held a deeply moral character, being a collection of moral principles received not merely from their ancestors, but from God Himself. Nonetheless, in both Jewish and Islamic legal traditions, the law could be clarified and refined by scholarly commentators, whose interpretations would guide or even bind their successors. In Judaism, the written law of Moses was complemented by an oral tradition of rabbinic interpretations and judgments about how the law should be applied in particular contexts. Different schools of thought followed different rabbis, but there was a generally received depository of oral commentary or mishnah that was considered to extend as far back as Moses. The mishnah effectively served as a common law complementing the written law. Beginning in the second century, the mishnah and its commentaries (gemara) were compiled in writing, forming the Talmud. In Islam, a similar development occurred as the hadith, or sayings of the Prophet, constituted a sort of common law complementing the Koran. The hadith were eventually codified, and schools of law developed with their own theories of interpretation.

The English common law arose from a variety of influences, including Anglo-Saxon, Dane, Norman, and Roman law. Its historical development is of special concern, since all existing common law nations derive their legal traditions from England. We will find that the notion of common law changed over time. The term “common law” did not arise until the twelfth century, but the idea of a received body of customary case law dated back to the Anglo-Saxon period.

Early Anglo-Saxon law was quite simple, being little more than a collection of punishments or damages prescribed for various offenses. A written compilation of these prescribed judgments or “dooms” was established by Alfred the Great (ruled 871-899) in his “dome-book,” also known as the Liber Judicalis. King Alfred is thus regarded as the founder of English law, being the first to codify its existing traditions. Before the Norman conquest, the Anglo-Saxon legal system was administered by county courts, which were headed by a bishop and had jurisdiction over ecclesiastical and civil affairs.

During the Viking occupation of England in the early eleventh century, some institutions of Dane law entered the English system. Among these was the sworn jury, composed of twelve thanes or hereditary nobles. However, these juries only gathered facts and did not decide guilt or innocence. Judgment was rendered through trial by ordeal, as in the Anglo-Saxon system. Thus we cannot say that trial by jury existed in England before the Norman conquest.

Anglo-Saxon rule was restored under Edward the Confessor (ruled 1042-1066), who re-established the legal system of Alfred the Great. At the same time, Edward incorporated much of Dane law into the Anglo-Saxon system, as Scandinavian jurisprudence was by then well established in the eastern counties of England. Thus, at the time of the conquest in 1066, English law was an amalgam of Anglo-Saxon, Dane, and canon law.

William the Conqueror brought the legal institutions of Normandy into England, initiating a long process by which native and foreign elements were integrated. The content of Norman law was based in part on the civil law of ancient Rome, yet English laws were permitted to remain in force in local jurisdictions. The Normans found England with an irregular legal system, varying by local custom. As the monarchy established itself, a more uniform law would be imposed, not by introducing purely foreign material, but by regularizing interpretations of existing English customs.

The most important legal reforms came during the reign of Henry II (ruled 1154-1189), who established “common law” as we know it. King Henry introduced trial by a jury of ordinary citizens, an adaptation of the Frankish inquest. Juries or “inquests” of free men were appointed to ascertain facts, though, like the juries of Dane law, they did not hear arguments in court. This was nonetheless an important innovation, as factfinding was entrusted to common citizens rather than magistrates or noblemen. Most importantly, Henry sent judges from his central court to hear cases, which they would judge according to custom. They would discuss their rulings with other judges in London, and record their decisions. In this way, greater consistency in the interpretation of law would be achieved, establishing a more truly “common” law over all England.

The early Norman period witnessed an expansion in the scope of English law. Anglo-Saxon jurisprudence had little in the way of contract law, and courts of equity were unknown. As English commerce grew in the twelfth century, there arose greater need for laws to enforce contracts. Norman law established juridical enforcement of contracts and titles of equity. Eventually, the monarchy would introduce courts of equity, a continental institution that was foreign to Anglo-Saxon jurisprudence. Modern English jurisprudence would emerge from a synthesis of common law and courts of equity.

Henry II and his successors established a uniform interpretation of common law by means of three courts: the Court of the King’s Bench, the Court of the Exchequer, and the Court of Common Pleas. The law of these king’s courts was considered the “common” custom of the realm, as contrasted with the local customs that were still used in manorial and county courts. The common law imposed a uniform rule for private property and offenses against property throughout the nation. Localities still retained their own laws for many other matters.

The King’s Bench grew out of the royal court or Curia Regis. By the time of Henry II, there was already a movable court of royal judges who personally heard cases throughout the realm. These judges regularly convened at Westminster to compare their rulings and establish consistency in their jurisprudence. The primary role of the King’s Bench was to hear cases directly relevant to the crown, such as those involving taxation, but the court also heard common pleas.

The Magna Carta of 1215 was a charter of the rights of the nobles, clergy, and commoners against King John. Many of its provisions would be forgotten amid the benevolent rule of later monarchs, yet it established some lasting institutions of importance. The Magna Carta explicitly required that there should be a distinct court for common pleas. The Common Bench, later known as the Court of Common Pleas, dealt with actions for the recovery of property or debt. The King’s Bench could no longer directly hear common pleas, but it could treat actions for trespass, had unlimited criminal jurisdiction, and served as an appellate court over Common Pleas. The rulings of the Court of Common Pleas would form a body of precedents for common law.

As early as 1190, the department of the Exchequer functioned as a court where the Crown could sue for monies owed to it, and private citizens were also permitted to sue there. By 1290, the Exchequer became a common law court on par with the King’s Bench and Common Pleas. To limit its power, common pleas could only be heard in the Court of Common Pleas. Nonetheless, people could continue to use the Court of the Exchequer by the legal fiction of claiming to be servants of Exchequer officials or accountants of the crown by virtue of paying taxes. By the seventeenth century, the Exchequer was effectively a third court of common pleas.

If satisfaction was not granted by the common law courts, people could petition the king, the fount of justice, for remedy. Such petitions were administered by the Lord Chancellor, who had jurisdiction to determine cases according to equity or fairness rather than according to the letter of the law or precedent. Equity jurisprudence, unknown to Anglo-Saxon law, was a way to correct particular cases where the general rule of law does not give due remedy. A court of equity could issue writs ordering the release of prisoners awaiting trial, or injunctions against the enforcement of some legal provision or otherwise preventing a party from acting. The purpose of equity jurisprudence was to enforce rights and claims not adequately protected by common law, as summarized in the maxim of equity judges: “Equity will not suffer a right to be without a remedy.”

The Court of Chancery, presided by the Lord Chancellor, was authorized to hear cases of equity, as were the Exchequer and the King’s Privy Council. The Court of Chancery’s equitable jurisdiction was permanently established under Edward III (reigned 1327-1377), at a time when questions of equity could still be referred to the Privy Council. Chancery obtained exclusive jurisdiction over equity in the succeeding reign of Richard II. Petitions for equity, or “bills” were now submitted directly to the Chancellor.

Equity courts did not have trial by jury, as their purpose was not to resolve questions of fact, but to prescribe remedies for particular situations not adequately treated by common law or statutory law. Chancery derived some of its juridical principles from Roman law and canon law, and followed rules of evidence altogether distinct from English common law courts. Trial by jury, supposedly a cornerstone of English liberty, was altogether absent from the courts that issued writs of habeas corpus. Though trial by jury was guaranteed in the Magna Carta, that famous charter was gradually forgotten under more benevolent monarchs, who were trusted with much greater power than King John. Still, trial by jury remained a cherished institution, and a court of equity might issue a writ releasing a prisoner on the explicit condition that he agree to a trial by “inquest” or jury. For civil cases, trial by jury existed only by the consent of both parties. Judges in common law courts and even equity courts, with increasing frequency, would effectively force a litigant to accept his opponent’s offer of trial by jury, lest he should lose the case. In this way, trial by jury in questions of fact became the standard practice for criminal and civil cases.

Equity jurisprudence was not intended to supplant common law, but to supplement it in cases where the general rule of law did not give due remedy. As Sir Edward Coke later commented: “He who knew not the common law could never judge well in equity, which is a correction of law in some cases.” On some occasions, the courts of equity would consult with common law judges to help decide their cases. The body of law established in the Court of Common Pleas was by no means ignored by the courts of equity. Still, the Court of Chancery effectively competed with the common law courts, as plaintiffs who could not get satisfaction in common law courts increasingly turned to Chancery. By the early sixteenth century, Chancery was recognized as a court with a well-defined jurisdiction.

Both common law and equity jurisprudence eventually became well-defined, rigid bodies of law. Common law was defined by the principle of stare decisis, as judges considered themselves bound to follow previous rulings in cases with similar facts. The “common law” came to be understood to mean the body of juridical precedents for interpreting English law. As the Catholic Encyclopedia (1910) puts it:

After the time when courts became established and entered upon the exercise of their various functions, the common law developed gradually into a more finished system because of the fact that judicial decisions were considered to be an exposition of the common law and, consequently, were the chief repository of the law itself. For this reason the observance of precedents is a marked feature in English jurisprudence and prevails to a much greater extent than under other systems. As the law is deemed to be contained in the decisions of the courts, it necessarily follows that the rule to be observed in any particular proceeding must be found in some prior decision. (J. Willis, “Common Law” Vol. 9)

The rule of precedent, whereby the courts effectively provide content to the law, is an essential feature of the English system. It was made necessary because of the absence of codification or a legislative body. Once implemented, the rule of precedent served as an adequate substitute for codification, so that England was able to resist the advance of Roman jurisprudence that overtook the continent in the twelfth and thirteenth centuries.

English resistance to Roman law was aided by several factors. The ecclesiastical courts of England had strictly limited jurisdiction since Henry II imposed the Constitution of Clarendon on the Church in 1164. This curtailed the principal source of Roman law in England. Further, the ancient legal customs of England had been adapted to the national character, and since there was no proper legislature to change the common law, it had come to be regarded as sacred and immutable. Thus the barons of England in 1238 declared: Nolumus leges Angliae mutare. (“We do not wish to change the laws of England.”) We may be reminded of Aristotle’s comment that unwritten law is less easily changed than written law, and thus a greater guarantor of respect for rule of law. It is true that judges could effectively amend or shape the common law with their rulings, but by the thirteenth and fourteenth centuries enough precedents had been laid to make the common law quite rigidly defined.

Recourse to courts of equity became popular in part because of the rigidity of common law jurisprudence. However, the rules of equity themselves became codified, including rules for issuing injunctions or writs, or establishing trusts of equity. By the seventeenth century, equity law had become rigid and precedent-based, far removed from its origins as an organ of the Lord Chancellor’s discretionary judgment.

English common law as we now know it was really a synthesis of Anglo-Saxon common law, Dane law, and Norman equity jurisprudence, combined with a body of judicial precedents adding to the content of the law. In the Anglo-Saxon period, the content of law was irregular and varied, depending on local custom. Under Norman rule, the common law became a uniform set of interpretations of pre-existing customs. Thus the common law was a sort of codification and rationalization of the diverse legal customs of England. Nations that had Roman law or some other codified system would not need common law jurisprudence and its rule of precedent, for they had no want of codification or rationalization.

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2. Historical Development of Civil Jurisprudence

The Romans developed a comprehensive body of civil law that would prove to be a more lasting legacy than their world empire. Virtually every nation of Europe has felt the influence of Roman law, either in judicial institutions or in the content of laws. As with our discussion of common law, we are not concerned with the specific content of Roman law, but rather its principles of jurisprudence.

Roman civil law, or ius civile, began as a sort of common law, being a body of traditional legal customs that were not committed to writing at first. At least since the early Republic, the civil law was recognized as the ius populi, or law of the people, since it was determined by the popular assemblies, especially the assembly of centurions (comita centuriata). In contrast with the Athenian system (but similar to other Greek city-states), the Roman public assembly had real legislative power. Nonetheless, the early Roman concept of law (ius), like the Greek nomos, derived principally from the people’s sense of what is right or just. Since law embodied traditional moral ideas about justice, it was only natural that the preservation of the law was at first entrusted to the care of priests.

Although civil law expressed the will of the people, the Romans recognized its authority only in the public sphere (ius publicum), and not in the private sphere. Private law (ius privatum) regulated disputes between families and individual citizens. In practice, this could involve vigilantism, as a wronged family might kidnap a son from a rival family, thereby forcing the latter to agree to arbitration. Within the household, there was no law, public or private, save the will of the pater familias, who ruled his wife, children, retainers, slaves and property with absolute authority for as long as he lived. Thus the civil law was severely circumscribed in its scope, and Roman society was not nearly as legalistic as we might expect.

Around 450 BC, the customary law was codified in the Twelve Tables, which included what we would today call criminal and civil law, as well as judicial procedures and religious law. The content of this codified Roman law appears to have been heavily influenced by Athenian law, yet the conduct of Roman jurisprudence would differ greatly. At first, the Twelve Tables were entrusted to the priests, the traditional caretakers of the law. In the early third century BC, the laws were made accessible to all citizens, so everyone could know which laws were currently in effect. The body of law consisted of formal legal pronouncements (lex) and other written legal materials (ius scriptum), as well as unwritten custom (ius non scriptum, or mores).

In the Roman Republic, laws were proposed by magistrates (executive officials) and approved by the popular assembly. Further, the praetors had their own proper lawmaking authority (ius praetorianum, later called ius honorarium) in virtue of their office. A praetor’s legal edicts were included in his instructions to judges (iuris dictum) issued at the start of his term. The praetor’s edicts and other instructions bound the judges for the duration of his term.

As the Romans conquered much territory beyond Italy (2nd cent. BC), it was deemed prudent to impose a modified form of Roman civil law on subdued foreigners. This was the ius gentium or “law of nations,” not to be confused with our international law. The ius gentium belonged to the domain of public law, and so it did not affect matters of private justice, which were left to local custom. The restricted scope of Roman civil law made it relatively easy to impose on foreign people with radically different traditions, as it did not affect much of one’s daily life.

Toward the end of the republican period, the praetors began to issue perpetual edicts (edictum perpetuum), which would remain in force beyond one’s term in perpetuity, unless a later praetor cancelled it. A new praetor would review the edicts of his predecessors, and often deemed it prudent to allow them to remain in force. This practice had the advantage of establishing a relatively stable body of judicial rules, yet it could also present difficulties. It would become increasingly complicated to keep track of which edicts were in force, as it was not always clear if a later edict nullified all or part of a previous edict.

In the imperial period, jurisprudence became a scholarly profession, with competing schools of thought. At first, legal scholars gave counsel to government officials regarding which laws and edicts ought to be considered still in force. Eventually, some jurists obtained a privilege from the Emperor to give legal opinions (responsa prudentium) that were binding on judges. Although later nations would shrink from giving so much power to law professors, a prominent role for legal scholarship has remained an important characteristic of civil jurisprudence, since there is no rule of precedent. The Jews and Muslims also have several schools of juridical thought, but the law they interpret is a common tradition, beyond the authority of any existing legislature, and the judgments of past scholars are often considered authoritative by future generations.

The body of Roman civil law was completed by imperial edicts that had the character of legislation. Finally, in the sixth century, the emperor Justinian, who had reconquered Italy and hoped to restore the empire permanently, ordered the compilation of a comprehensive corpus of Roman civil law. This Corpus Iuris Civilis was an anthology of every known law or edict issued by the emperors or republican institutions, classified by subject. Though it would come to be known as the code of Justinian, it was not a code in the modern sense, since laws that contradicted each other were permitted to remain side by side, leaving it still ambiguous which laws were to remain in effect. It remained the work of scholarly jurists to determine which laws were considered still binding.

Justinian’s code remained in force in the Eastern Roman Empire, but the West succumbed to Germanic rule in the fifth century, and again in the sixth, after Justinian’s brief reconquest of Italy. The Germans brought with them no written statutes, but had only a common law preserved by oral tradition. The Germans permitted Roman law to remain in force among the people of the former empire, as German law was understood to have personal jurisdiction over descendants of Germans, not territorial jurisdiction. As the empire fragmented, the government of Rome lost its power over most of Western Europe, so each region developed its own legal tradition. These traditions were heavily influenced by Roman law; in the early Middle Ages, most laws were based on corrupted Roman codes, mixed with some Germanic law.

A single legal system for much of western Europe was briefly imposed by the Frankish empire of Charlemagne in the ninth century. Charlemagne sent out his officials to compile a survey of the tribal legal customs throughout his kingdom. He then enforced these customs with government orders (capitularia). The popular law courts were retained, but they were improved with the Frankish institution of a jury of seven, who pronounced judgment. This is the true foundation of trial by jury in the modern sense, for the jurors could actually pronounce guilt or innocence, as opposed to merely discovering facts.

The public laws of the Carolingian empire were severely circumscribed by the manorial system. The manor was beyond the public sphere, as the lord had full jurisdiction over all free peasants and serfs who lived under him. He had the privilege of deciding judicial matters, and the responsibility of enforcing justice for those under his protection. The lord generally governed according to local custom, so the laws of Western Europe were highly varied even under Carolingian rule.

With the breakup of the Frankish empire, the uniformity of public law disappeared. In the absence of a strong central government, the feudal system rose to greater prominence. Feudal relations of authority between greater and lesser nobles were determined by personal pledges of fealty. Each vassalage might have its own unique terms and conditions, so that there was no uniform flow of authority throughout a European nation, but an intricate network of relations among nobles, each with its own special characteristics. This personal rule effectively supplanted rule of law in the public sphere, though nobles considered themselves bound by custom, and the feudal arrangements themselves constituted a sort of law.

In the post-Carolingian period, the greatest preserver of Roman law was the Catholic Church. Canon law, which extended back to the time of the unified Empire, preserved principles of Roman law and jurisprudence. Ecclesiastical courts were often the only courts available in many parts of Europe, so they also held civil jurisdiction, again relying on Roman principles. Additionally, the Church was the primary institution of learning in Europe and the preserver of Rome’s literary tradition, so any educated man would be exposed to Roman legal thinking on some level. However, Roman law and even canon law were in a highly irregular state, lacking any form of codification before the eleventh century.

When Justinian’s Corpus Iuris Civilis was rediscovered in the West, it ushered in a new wave of legal scholarship, spearheaded by the Catholic Church. The study of law became extremely popular among clergy, and jurists all over Europe expounded theories of civil law. In 1088, the first law school was established at Bologna. Justinian’s code constituted a ready-made body of law that Europeans could draw upon to develop their own systems.

Roman law was reintroduced in France, England and Germany, to the extent that conditions allowed. The jurisdiction of ecclesiastical courts expanded at this time, facilitating the promotion of Roman jurisprudence, especially in England, where the King’s courts often resorted to principles of civil law. The Germans used Roman law to handle contemporary problems of money and property for which traditional German law was ill-equipped. In the spirit of codification, even the German common law was committed to writing during the thirteenth century. Ordinary Germans resisted Roman law, viewing it as a foreign intrusion that limited their traditional rights. Still, the nations of Europe continued to develop civil jurisprudence based on Justinian’s code throughout the eleventh and twelfth centuries.

Canon law itself was subjected to the new fashion of codification, as St. Ivo of Chartres wrote his Panormia in the late eleventh century. Much as Justinian’s code was composed of past decrees organized by subject, so the Panormia was a compilation of papal and conciliar decrees, as well as judgments of the Church Fathers, regarding ecclesiastical law. A more thorough anthology of church decrees was composed by the jurist Gratian around 1140. Gratian’s Decretum became known as the Corpus Iuris Canonici, in analogy with Justinian’s Corpus Iuris Civilis. Canon law was now fully established as a body of legislation distinct and independent from civil law. This would have far-reaching implications for the development of a distinction between ecclesiastical and civil authority (absent in Judaism and Islam), which would be fully articulated in the thirteenth century.

Both civil law and canon law faced the problem of determining which of many conflicting decrees ought to be considered still in force. To this end, legal scholars gained influence, and by 1500, an entire legal science based on the Corpus Iuris Civilis and the Corpus Iuris Canonici was established throughout Europe.

In the modern era, civil jurisprudence was codified as statutory law, leaving no room for ambiguity regarding which laws were in effect, while the role of legals scholars diminished. Modern codes include the Prussian law code of 1794 and the highly influential Napoleonic code of 1804. Modern nation-states of continental Europe entrusted lawmaking entirely to a constitutional legislature, while jurists had reduced influence, being able only to interpret existing statutes, rather than determine which statutes are in effect. Even canon law followed this trend of codification, as the Corpus Iuris Canonici (supplemented by the edicts of more recent popes and councils) was replaced by the Pio-Benedictine Code of 1917, an unambiguous code of law. The constitutions of modern European states tend to be lengthy documents, with a level of detail characteristic of statutes. Thus the European judiciary typically has little power other than to apply the written law to a particular case, without purporting to establish any general rule or precedent. All law-making power is in the hands of the legislature.

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3. Common Law Jurisprudence in the United States

The introduction of modern legislatures has had a different effect on common law jurisprudence than it has on civil jurisprudence. The nations of continental Europe codified civil law in a way that reduced the influence of jurists and enhanced the power of the legislature. In England, however, the common law courts had already developed a relatively unambiguous body of law through the rule of precedent, creating a potential for conflict with modern legislatures. Indeed, when Parliament first acquired legislative powers, it was forbidden to change or limit the common law by statute. Since juridical common law antedated the legislative authority of Parliament, it was permitted to remain as a check on the power of Parliament, much as the nomoi of Athens were beyond the purview of the general assembly. The exact relationship between the legislative and judicial authorities would be further developed in the English colonies that would become the United States of America.

From 1607 onward, English common law was applied to the North American colonies. As a legacy of their origins, all states in the modern United States of America use English common law as the basis of their criminal and civil codes, except Louisiana, which uses a variant of Roman civil law. However, for the most part, common law is not recognized as an authority in its own right, but only insofar as it has been codified as a statute. The U.S. Supreme Court decided in U.S. v. Hudson and Goodwin (1812) that there can be no common law crimes, but all crimes must be defined by statutes passed by a legislature. Although state criminal codes derive from common law, they have force only as any other statute would. They are common law only in terms of their historic origin.

Some principles of jurisprudence, and especially tort law, may remain unwritten in any statute. Although legislatures reserve the right to reform tort law and any common law principles used by the courts, it is often judged expedient to allow legal traditions to remain, for the sake of stability. Courts therefore tend to have much broader recourse to common law tradition in matters of contract and tort law than they do in criminal law. Indeed, much of the law regarding the treatment of corporate entities and their rights was established by courts, not legislatures.

There are three kinds of actions or omissions for which a person may be brought to court as a defendant: crimes, breaches of contract, and torts. Criminal law, dealing with offenses against the public or the state, is beyond the domain of common law in the U.S., though much of criminal jurisprudence comes from English common law and Norman equity. Contract law also requires the discretionary powers of equity jurisprudence, as every contract is unique, and may have terms that do not make the determination of damages easy to resolve by statute. The Seventh Amendment makes explicit reference to the rules of common law in examining civil disputes. Lastly, a tort is a an act or omission that is not a breach of contract, yet requires civil redress. Here the court has even greater discretion to apply principles of common law and equity, as there is not even a written contract to interpret.

Although the term ‘tort’ only came into common use in the last half century, the concept is ancient, for there are many cases when a person may be denied his due without breach of contract. A tort could be a violation of someone’s common law property rights, or even one’s statutory rights. It might also be a violation of personal rights that are guaranteed by common or statutory law. A tort is identified by its infliction of real temporal damages on a person, such as a loss of property or a denial of opportunity for income, in a way that violates a generally recognized right. While a contract only protects the parties of the contract, there are also more general protections that all citizens enjoy, and these are guaranteed by tort law. Tort cases, like contract cases, are disputes between individuals or corporate entities, and are resolved by civil suits rather than criminal prosecution.

Tort law may be circumscribed by a legislature, which may pass a statute protecting certain classes of defendants from civil damages or limiting the damages. However, there are some rights that are not statutory, a fact explicitly recognized by the Ninth Amendment, which acknowledges that the people retain rights not enumerated in the Constitution. This is because basic rights are not the gift of the state, but belong to the people in virtue of their dignity as free men. Thus no legislature has the power to take away these rights by statute, and courts can assert themselves most strongly in matters of tort law involving civil rights.

The strength of the American system is that courts can defend the rights of citizens against any tyranny of the majority that may take hold in the legislature. When courts rule on the constitutionality of laws, they act as a check on legislative power. The application of common law jurisprudence to a written constitution allows the judiciary to act as an independent arbiter of the constitutionality of legislative acts. Without this judicial review, the constitution would not impose any real limit on legislative authority. However, the courts may abuse their power, and penalize offenses against “rights” that are not really rights, or are interpreted too broadly. Such rulings cannot be overturned by statute, and the rule of precedent makes future judges reluctant to change even a bad decision, unless it proves to be unworkable.

The most important legacy of English common law jurisprudence in the United States is the rule of stare decisis, or rule of precedent. This rule has long been considered a strength of Anglo-American jurisprudence, as it provides stability to the law and places legal interpretation in the hands of judges on the bench rather than detached scholars. The chief danger of this system is that a bad decision will have more far-reaching and long-lasting effect than it would on its own merits. This danger is strongest precisely where the courts have most power, in matters regarding rights beyond statutory law.

Historically, the federal courts have been reluctant to adjudicate rights not enumerated in the Constitution, but in recent decades, there have been many “activist” decisions by federal and state courts that assert rights that are unknown to the Constitution and common law. Some of the more controversial rulings have asserted de facto rights to contraception and abortion, expanded rights for criminal suspects and defendants, and a recognition of sodomy (a common law crime) as on a par with marriage. These dubious decisions, which are often made in complete disregard for precedent, are not an indictment of common law jurisprudence as such, but they abuse the principle of stare decisis to effectively act as a legislature, knowing that a single ruling will be followed by all lower courts and future courts, and respected by other branches of government. This arrangement effectively makes the judiciary unanswerable to legislatures, save by constitutional amendment. Even then, the courts have the power to interpret the constitution, and can render the sovereign will impotent by distorting its meaning according to the peculiar ideas of each judge. Stare decisis makes unlawful decisions extremely influential and difficult to overturn. When applied properly, the rule of precedent has great benefits, but if one court should reverse established law to create its own new precedent, the consequences can be ruinous to the rule of law.

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4. Critique of Common Law and Civil Jurisprudence

A principal difference between common law and civil jurisprudence is the role of the judiciary in shaping the content of law. In modern common law nations, judicial decisions establish general rules for all similar cases, though these decisions must usually refer to statutory law or a written constitution. Although this may seem to give too much power to judges in a single case, it has the advantage of creating stability in the law. As Lord Coke observed in his commentaries on the laws of England, common law jurisprudence establishes a unified authority for interpreting law.

Upon the text of the civil law there be so many glosses and interpretations, and again upon those so many commentaries, and all written by doctors of equal degree and authority, and therein so many diversities of opinions, as they rather increase than resolve doubts and uncertainties, and the professors of that noble science say that it is like sea full of waves. The difference, then, between those glosses and commentaries are written by doctors, and which be advocates, and so in a great manner private interpretations; and our expositions or commentaries upon Magna Charta and other statutes are resolutions of judges in courts of justice in judicial courses of proceeding, either related and reported in our books or extant in judicial records, or in both, and therefore, being collected together, shall (as we conceive) produce certainty, the mother and nurse or repose and quietness.

Continental jurists only give their professional private opinions, subjecting legal interpretation to the ever-changing fashions of the schools. Judicial precedents, on the other hand, are the result of actual case rulings by duly authorized courts of law. They produce certainty in how the law is to be interpreted.

While this advantage cannot be denied, we must ask if it is meet that the first time the court rules on a set of circumstances ought to be considered the definitive precedent. After all, one is less likely to judge justly on the first attempt, without the benefit of experience, testing whether such an interpretation will lead to good results. The rule of stare decisis is in practice limited by this notion of workability; namely, if a precedent frustrates the enforcement of justice or leads to contradictory or vague practical legal principles, a future court may deem the precedent unworkable and overturn it. A later court is no less sovereign and competent than its predecessors, but it will not overturn a precedent unless it is unworkable, so the interpretation of the law is kept relatively stable and everyone knows what the law is. Such reasoning has in fact been expressed by American courts. California courts, for example, often cite this text of the influential legal scholar Bernard Witkin (1904-1995).

The doctrine of stare decisis expresses a fundamental jurisprudential policy of common law jurisdictions, that a rule once declared in an appellate decision constitutes a precedent that should normally be followed by certain other courts in cases involving the same problem. It is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law. (Witkin, California Procedure, 4th ed. 1997, sec. 917, pp. 953-954.)

If we acknowledge that “certainty, predictability and stability” are “major objectives” of a legal system, then the benefits of stare decisis might be considered to outweigh the risk of bad decisions becoming entrenched errors. Stare decisis is a necessary expedient to provide stability to the law, and it saves overburdened courts the labor of having to investigate every legal question anew. Ironically, while Witkin defends stare decisis, he is himself an example of how legal scholarship can be an alternative means of achieving uniformity in the law, as his treatises brought order to the rapidly expanding California legal code, and remain an invaluable reference for judges.

There remains a further problem with common law jurisprudence, namely its impact on the relationship between the judiciary and the legislature. This problem has been partly resolved by codifying the common law in statutory legislation, yet judges can effectively modify the law with their rulings, which have the force of general rules for all similar cases. The rule of precedent is a vestige from a time when court decisions constituted the content of law, and we may expect tension between a judiciary that has the power to make general rules and a sovereign legislature that is supposed to have full law-making authority.

By defining what the law means universally, rather than in a particular case, judges may act as super-legislators. A single bad precedent by a high court effectively imposes a new law over all the land, contrary to what was intended by the legislature. This forces the legislature to modify its statute, or even amend the constitution, to correct a bad judicial construction. Such judicial power can impose an unreasonable burden on the legislature to accomplish the execution of its will expressed in statutes. If a high court misconstrues a constitutional right in a single case, entire classes of statutes can be voided, and the legislature must overcome the court not by a simple majority, but by the supermajority required to amend the constitution. If consistently abused, the rule of precedent could enable courts to undermine the sovereignty of the legislature.

On the other hand, there are advantages to the judiciary checking the power of the legislature in this manner, as the majority cannot impose its will untrammeled against traditionally recognized rights. Further, the rule of precedent in some ways makes it simpler for legislatures to correct bad judicial decisions. With all courts following a single bad interpretation, the legislature need only correct a single error by modifying or clarifying its statute. Without the rule of precedent, each judge could interpret a statute differently, and a legislature would be faced with a bewildering number of judicial errors to correct by statute.

Neither common law nor civil jurisprudence eliminates the need for judges to pore over a ponderous body of juridical interpretations. Judges in civil jurisdictions may turn to legal scholarship for this purpose, but common law judges have a more unambiguous repository in the authoritative precedents set by higher courts. Thus the common law judge has less frequent occasion to resort to an appeal to “natural justice.” In the absence of statutory law applicable to a case, a judge may resort to common law, and if there is no precedent, he may appeal to natural law, as Henry John Stephen (19th cent.) described:

When a case is brought into a court the first question which legitimately emerges from the facts is, whether there is any statute which provides for it. If there is none, then it is inquired whether there be any clear principles of common law which fixes the rights and obligations of the parties. If the answer be again in the negative, then springs up the inquiry, whether there be any principle of the common law which, by analogy or parity of reason, ought to govern. If from neither of these sources a principle of adjudication for the case can be educed, it is recognized as a new case, and the principles of natural justice are applied to its solution. But if the principles of natural justice, on account of any technical or other impediment, cannot be applied to the settlement of the respective rights of the parties, then, by the immutable juridical principles of the common law, founded upon the jealous limitation of judicial discretion, if equity cannot relieve, the case must fail; and provision can only be made by statute for future cases of like nature. (H.J. Stephen, A Treatise on the Principles of Pleading in Civil Actions, Washington, DC: Morrison, 1871)

In civil law jurisdictions, there is no rule of precedent, so in the absence of statutory law, a judge must decide each case according to principles of “natural justice,” or what the judge considers fair. Thus judges in civil law jurisdictions enjoy far greater discretion in cases that cannot be resolved by statutory law, yet this discretion will only have consequences for that particular case.

Lastly, we may compare the mode of factfinding between the two systems. This distinction does not follow of necessity from the concept of common law and civil jurisprudence as such, but is an artifact of the actual historical development of Roman and English jurisprudence. Common law nations follow the English adversarial system, with lawyers or advocates on both sides responsible for fact finding. In criminal cases, the prosecution is represented by a state attorney, who gathers evidence in cooperation with the police. Both sides present their view of the facts, and the judge or jury rules in favor of one or the other party. As this system depends heavily on attorneys for fact-finding and argument, there is a danger that justice is skewed in favor of those who can afford to retain expensive counsel.

In the continental or civil system, by contrast, factfinding is done by the court, following the Roman inquisitorial system. This puts much more power in the hands of judges, yet removes the unseemly elements of common law trials, with high-priced, mendacious lawyers dominating the proceedings. Both methods, despite their faults, have proven to be effective in criminal and civil cases, and are basically viable and fair forms of jurisprudence.

In sum, both the common law and civil law systems have notable strengths and weaknesses, yet they are both viable systems of jurisprudence, as proven by their success in numerous countries of diverse culture. They both derive, as we have seen, largely from Roman jurisprudence, but by different historical paths which have resulted in distinct systems. It would be difficult to gain the advantages of one system without losing the advantages of the other, though we have seen in the example of the United States an attempt to harmonize the sovereignty of modern legislatures with common law tradition.

A truer attempt at a hybrid would be the legal system of Argentina, which has elements of civil and common law. The Argentine legal system is fully codified, with a lengthy written constitution (1853; revised 1994) and a civil code first written by the jurist Dalmacio Vélez Sarsfield in 1869. The Argentine constitution closely follows the U.S. constitution regarding the powers of the judiciary, so the federal courts have traditionally referred to U.S. precedents on this topic. In particular, they accept the American understanding that a plaintiff must have standing to take a case to court. Argentine courts have a weakened form of the rule of precedent. Lower courts are morally obligated to follow the precedent of higher courts, but they are permitted ignore precedent if they find its application inconvenient in a particular case. The rule of precedent is further weakened by the fact that there is no judicial decision (save constitutional matters) that cannot be nullified by a statute of Congress. Thus there is little opportunity for a long history of precedents to develop, as exists in the United States. The Argentine system uses inquisitorial courts instead of the adversarial system, and cases are decided by judges. The right to trial by jury exists in the constitution, and a jury (of eight, whose names were made public) was first used in oral criminal court in 2005. Argentine law is principally a system of civil jurisprudence, but it has incorporated several notable aspects of the English tradition.

This survey of the principal features of common law and civil jurisprudence may help us become more aware of the historical and moral limitations of our received legal institutions. While it is generally preferable to retain an existing legal system for the sake of stability, we may look to other models for ideas on how to mitigate the flaws of our own system. We have touched only the surface of the problems of law, as both civil and common law jurisdictions must face the basic questions of right and jurisdiction, law and equity, public and private domains, and the scope of property claims. The choice between civil and common law institutions does not decide any of these questions, but provides a framework whereby the authority or rule for deciding these questions is determined.

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Aristotle. Politics.
Coke, Sir Edward. Institutes of the Lawes of England.
Putney, Albert H. Popular Law Library, 2nd ed., Vol. 1. Chicago: Cree Publishing Co., 1910.
Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

© 2009, 2011 Daniel J. Castellano. All rights reserved.