FALL 2018
*INTRODUCTION
TO UNITED STATES LAW--Lecture
Topic 2: Common Law
--Last Modified:
Tuesday, 17-Sep-2019 11:36:19 EDT
Lecture Topic 2:
Common Law
General: the United States as a
common law legal system
Legal scholars and commentators often
characterize the legal system of the
United States as a common law legal
system. Like any generalization, this
characterization is an over
simplification. It is, however, true
that large areas of substantive law in
the United States are based on the
common law. The common law is heavily
supplemented by statutory law in the
United States. In some cases this
statutory law merely codifies the rules
developed under the common law. In other
cases, the statutory law overturns or
modifies a common law rule. This chapter
describes various aspects of the common
law and the common law legal tradition,
concluding with a brief comparison of a
common law system to a civil law system
and some historical observations. It
should answer the questions: what is
generally meant by the common law and
what is the common law tradition?
Scope of the common law
The common law today is primarily
substantive law rather than procedural
law. As substantive law, the common law
governs relationships between citizens
in subject matter areas such as contract
law, property law, marriage and tort
law. It also governs relationships
between the citizen and the state by
setting forth a system of common law
crimes for which the state might punish
a citizen. By characterizing the common
law as “substantive law” I do not mean
to diminish the impact that ancient
forms of procedure had on shaping the
content of the substantive rules.
The common law never purported to be a
complete system of law which governed
all aspects of social life. In England,
where the common law developed, the
common law operated alongside other
legal systems such as canon law,
admiralty law and the law merchant.
Because the common law historically
operated within a strict system of
pleading which recognized limited
remedies, litigants often felt that the
result produced by a common law court
did not accomplish justice. Accordingly,
a parallel court system, known as the
court of equity, developed in which a
litigant either might seek a reprieve
from a harsh result produced by the
common law or might seek a remedy that
was not available for a common law court
to render. Historically, common law
courts only had authority to render
money judgments. One had to go to a
court of equity to obtain an injunction
or the remedy of specific performance.
In the United States, federal courts
and most state courts sit with
jurisdiction as both common law courts
and courts of equity. This allows the
courts to apply both common law and
equity in rendering a decision and
fashioning a remedy.
Characterized by an absence of
codification and reliance on prior
judicial decisions
The most salient feature of the common
law system is that, for the most part,
the common law is not codified. Some
might say that the common law is “judge
made law” rather than law passed by a
legislature, as a statute or part of a
code. One might hesitate to accept the
full implications of the phrase “judge
made law” because it suggests a certain
unbounded freedom to make up the law in
whatever fashion suits the fancy of a
particular judge. This would be to
overstate the power of the common law
judge (about which more below). However,
the common law is found in the pages of
opinions delivered by judges in the
cases which they decide. At least in
that narrow sense, common law is judge
made law.
What we can say safely about a pure
common law legal system is that it
possesses no comprehensive compilation
of legal rules and statutes passed by a
legislature. Instead, the legal rules of
decision to be applied in a new case
generally are reflected in prior
judicial decisions of the common law
courts. This means that the principles
for decision in a new case are to be
found in “precedent”—prior judicial
decisions rendered in previously decided
cases with similar facts—rather than in
a statute or a code book.
Reliance on precedent as requiring
publication of judicial decisions
Because of its reliance on prior
judicial decisions as a source of
substantive law, a system of common law
functions best when judges render
decisions in the form of written legal
opinions or orders in which they
describe the facts of the case and
explain the basis for decision (often
called the ratio decidendi).
Then, these decisions can be collected
and preserved in books for future
reference by litigants, lawyers and
judges. This practice of publication
assures that the law is generally
available to any interested party. This
is exactly what we find in the United
States today. The decisions of the
federal and state courts are collected
in volumes known as “reporters” in which
opinions are published. Lawyers and
judges conduct research in a library
which contains the reporters to identify
past decisions potentially relevant to a
current case. Increasingly, this
research is conducted using electronic
reporting services such as Westlaw and
Lexis.
It is worth noting that today courts
have the option of electing to publish
an opinion or to designate the opinion
as not for publication. The later such
opinions are known as "unpublished"
opinions. In many jurisdictions, an
unpublished opinion is specifically
designated as not suitable for citation
as a precedent or that it may be cited
as mere persuasive authority (but not
binding authority).
This is true even if these opinions are
collected and published by some
reporting service. In effect, because of
the ubiquity of reporting services and
electronic search engines, the
designation of an opinion as unpublished
really amounts to a designation by the
court that the particular opinion is not
suitable for use as authority in legal
arguments. For all practical purposes,
even unpublished opinions are available.
These practices reflect the important
relationship between the development of
a system of law via precedents and
publication.
[Read
INTRO TEXT, Form of Reported Cases at
pp. 53-55, Finding Case Law at pp.
55-58.]
Historically, the practice of
collecting judicial decisions in
reporters started in the late sixteenth
century in England with Lord Coke. In
his time, Lord Coke personally attended
most of the arguments in important legal
cases (whether as a participant or an
observer) in London. Lord Coke himself
wrote up reports which described his
understanding of the facts of each case,
the legal arguments presented and the
basis for decision based on his personal
observations of the proceedings.
Initially, he did this primarily to
further his own law practice because it
was a substantial aid to memory.
However, the tool became so powerful
that he published his notes in volumes
that came to be known as “Coke's
Reports” and sold them commercially. For
centuries, these reports were considered
to be the gold standard for a legal
citation in a common law court. One
occasionally still finds citations to
Coke's Reports in decisions published
today. Of course, for centuries before
Lord Coke started reporting on what he
saw at Westminster, the English common
law relied on simple custom and memory
as the basis for decision. The formal
system of reporting instituted by Lord
Coke allowed for a more professional and
detailed style of argumentation based on
appeal to precedent and prior decision.
Note that Lord Coke started by
reporting on what he witnessed
in court. This is because the arguments
presented and the decisions of the
courts in that time were all conducted
and delivered orally. That is to say,
Lord Coke presented his view of the
important facts and the basis for
decision. This concentrated a great deal
of power in the hands of Lord Coke. Some
have suggested that he may have
structured and edited his presentation
in accordance with his own political and
personal views. Today, this sort of
third party filter does not exist
because the judges write their own
opinions. In this sense, the reporters
are no longer true third party reports
but instead are the actual words
selected by the judges themselves for
publication.
Systemic benefits of relying on
precedent
It is the overriding sense in a common
law system that justice requires that
like cases should be treated alike—i.e.
should have the same outcomes. The idea
that new cases should be decided in the
same way as prior similar cases is
sometimes called the “doctrine of stare
decisis.” This doctrine has several
perceived systemic benefits. The first
benefit is the promotion of equality. It
insures that litigants are treated
equally before the law. The second
benefit is the promotion of
predictability. Potential litigants
might examine prior decisions as a guide
to how the court might apply the law in
a new case. To be sure, the parties may
still need a trial to determine the
facts of a new case but, assuming the
facts are agreed, the legal outcome may
be predicted. The third benefit of the
doctrine of stare decisis is that of
judicial economy. If work done in prior
cases to determine the shape and
structure of the law is applied in
future cases, courts do not need to
“reinvent the wheel” each time a new
case is presented for decision. The
fourth benefit of following prior
precedent is that it confers a certain
amount of respect on the work of prior
judges and, perhaps, promotes respect
for the legal system more generally. [Read INTRO
TEXT, The Judicial Function at pp.
58-59.]
Method of legal reasoning in a
system relying on precedent
As no two sets of facts are identical,
common law legal reasoning places a
premium on the ability of lawyers and
judges to argue by analogy and to
identify similarities and differences in
facts which have legal significance. If
a precedent is bad for the legal
position of a plaintiff, for example,
the lawyers for the plaintiff will
attempt to distinguish the bad precedent
from the case at bar by pointing out
differences in the facts of the two
cases which should dictate a different
outcome. In contrast, the defendant will
argue that the differences in the facts
of the two cases are incidental or
irrelevant and should have no legal
significance. Thus, the present case
should be decided in the same fashion as
the prior case—which would result in a
loss for the plaintiff.
In some cases, there may not be a prior
case which by analogy might persuasively
form the basis for a decision in a
current case. This situation is
sometimes referred to as “a case of
first impression.” When confronted with
a case of first impression, the judge
must fall back on general principles of
law, intuitions of justice and fairness,
his or her life experiences and other
factors to decide the issue. Even
though, in fact, a multiplicity of
factors likely influence the decision of
a judge in a case of first impression,
judges often do not acknowledge all of
these factors but instead explain the
outcome reached as a matter of more
neutral and impersonal logic. Of course,
once decided, a new precedent has been
created for reference in future cases.
If the approach taken in the case of
first impression is generally accepted
in future cases, then it becomes an
increasingly authoritative source of law
for future similar cases.
Because, in a common law system, the
opinions of judges form the source
material from which substantive law is
extracted, the lawyer must develop the
skill to analyze legal opinions. This
requires that the reader of an opinion
be able to isolate and distinguish the
holding of a case from other information
and pronouncements contained in the
opinion. Thus, though an opinion might
be many pages in length, often the key
legal point or holding of the case may
be distilled down to a single sentence
or two. This distillation is often
casually referred to as “what the case
stands for.” Other statements in an
opinion that are not deemed strictly
relevant to the legal issue for decision
are referred to as “dicta” in the
opinion. Sometimes lawyers argue over
whether a statement in an opinion
constitutes its “holding” on the law or
instead constitutes mere “dicta.”
Students should note that the United
States legal system relies on precedent
to decide questions raised by the common
law, but precedents and reasoning by
analogy is used to interpret other legal
materials, including statutes and the
U.S. Constitution
Important role of the judge in a
system that relies on precedent
Though litigants argue for application
of competing precedents to be applied in
the decision of each new case, the
presiding judge ultimately decides which
precedents are applicable. Moreover, in
novel cases the presiding judge will
decide and set forth the ratio decidendi
in a case of first impression. As a
result, judges have an enormous role in
shaping the contours of law in a common
law system. It is in this sense that the
common law may be said to be “judge
made.” However, though judges must
sometimes select among competing
potentially applicable precedents, they
do see themselves as bound to follow
existing precedent when such can be
found. Linguistic usage and common sense
set boundaries on how a court may apply
precedent by analogy. Opinions are
intended to be persuasive arguments
which convince the litigants, as well as
the legal community more generally, of
their correctness. If the argument
presented by a lower court is not
persuasive, it may be reversed on an
appeal. A reversal on appeal is, in a
strong sense, a rebuke of the judge who
set forth the overturned reasoning. This
rebuke is a public one because the
opinion in the appeal will be published
(or, at the very least, publicly
available). No judge likes to be
reversed by a higher court. Similar
arguments apply to explain the care with
which a judge will decide a case of
first impression.
Moreover, since at least the time of
Coke's Reports through the end of the 19th
century, judges did not generally view
themselves as making law when they
decided a case—even a case of first
impression. Rather, they viewed
themselves as discovering and revealing
the state of an existing and immutable
natural law that existed as a part of
the world. Much like geologists examine
specimens and make deductions about the
state of the world and its past history,
judges examined precedents to deduce the
correct result for the case before them.
Law was seen as akin to a science in
which the past legal decisions were
merely the data from which
extrapolations might be drawn.
Importantly, the participants in the
system believed that the common law
method produced a correct result in a
case. Judges did not perceive of their
role as merely selecting from competing
policy options. This view about the
nature of the law and the function of
the judge within the legal system is
sometimes referred to as “legal
formalism.” A legal formalist would tend
to view the legal system in isolation
from society more generally. The law was
a stand alone system in which logic was
applied to precedent to arrive at a
correct result, ideally without
extraneous considerations from social
theory, politics or otherwise.
The rise of the philosophical doctrine
of pragmatism in the United States in
the late 19th century and
early part of the 20th
century coincided with the evolution of
the doctrine of legal realism which
challenged the view of legal formalism.
A legal realist would not believe that
the law is based in immutable natural
law which dictates a unique and correct
legal rule for a particular situation.
Logic applied to past decisions did not
hold the key to correctly deciding
individual cases or shaping the contours
of the law in cases of first impression.
Rather, the legal realist would view the
law as a man made social institution
which should take shape based on
rational considerations of policy best
for the smooth and orderly functioning
of just society. Though few legal
theorists today accept all aspects of
the classical legal realist tradition,
the legal realists observations about
the true nature of the law and the role
of the judge in the legal system is
reflected in more modern theories. This
judicial philosophy is echoed in
followers of doctrines such as law and
economics, for example, which holds that
legal rules should take shape based on
considerations of economic efficiency.
Thus, according to a law and economics
theorist, the correct legal rule is the
rule that minimizes transaction costs.
A legal formalist, while acknowledging
the important role of judges in the
legal system, would not see judges as
“making the law” in any strong sense. In
contrast, a legal realist or follower of
one of legal realism's progeny, would
envision a much larger role for input by
judges on the shape and contours of the
law. Even a legal realist would
acknowledge, however, that in its
practical functioning a judge does not
have full carte blanche to write the law
however he or she sees fit. At a
minimum, the judge must still work
within a framework that pays lip service
to precedent to justify a present
decision in the fabric of the past.
Other forms of authority in a common
law system
In a common law system, the primary and
best source of authority on which judges
rely (and from which lawyers craft
arguments) is prior case law precedent.
However, in many cases, particularly
those in which no binding precedent can
be found or in which no prior case law
of any kind appears particularly
relevant to the decision at hand, a
lawyer may support his or her argument
for a particular result on what is known
as “secondary authority.” Secondary
authority may come from a variety of
sources, such as law dictionaries,
encyclopedias, treatises, law review
articles and restatements of law. Though
it is controversial in certain types of
cases (particularly in Constitutional
law), sometimes lawyers and judges will
refer to the outcome under foreign law
to lend support to an argument. [Compare
Ilya
Shapiro,
The Use and Misuse of Foreign Law in
U.S. Courts (Cato Institute May 19,
2010 ; Richard
Posner,
No Thanks, We Already Have Our Own
Laws, Legal Affairs (July|August 2004)
with Austen
L.
Parrish, Storm in a Teacup: The U.S.
Supreme Court's Use of Foreign Law,
2007 U. Ill. L. Rev. 638 (2007) ;
In a brief prepared for a court, the
brief typically will contain a table of
authorities, listing the relevant cases
first, followed by a listing of
secondary authority to which reference
is made in the argument. [Read INTRO
TEXT, Chapter 8, Secondary
Authority, at pp. 91-97.]
Adoption of the common law by the
states
The common law in the United States is
state law. After the original 13
colonies declared their independence
from England, these former colonies (now
states) passed statutes which formally
adopted most of the common law of
England. The general approach was to
adopt the common law as it existed prior
to one of three distinct times: the time
of the formation of the first permanent
English settlement in the Americas; the
time immediately prior to the
declaration of independence; or the time
immediately prior to passage of the
statute incorporating English common
law. These statutes are known as
reception statutes.
Here is an example of a reception
statute enacted by Virginia.
Reception
Statute of Virginia (1776)
“And be it
further ordained, That the common law of
England, all statutes or acts of
Parliament made in aid of the common law
prior to the fourth year of the reign of
King James the first, and which are of a
general nature, not local to that
kingdom, together with the several acts
of the General Assembly of this colony
now in force, so far as the same may
consist with several ordinances,
declarations, and resolutions of the
General Convention, shall be the rule of
decision, and shall be considered as in
full force, until the same shall be
altered by the legislative power of this
colony.”
You can see the importance of the
timing of the reception in the Virginia
statute by the reference to the fourth
year of the reign of King James the
first. It was at that time that time, in
1607, that Jamestown was founded by
private charter as an English
settlement. (Virginia's private charter
was revoked in 1624 and it was formally
made a colony of England.) The Virginia
legislature did not receive the common
law as it existed at the time of
declaration of independence in 1776. The
concept seems to be that reception of
the laws of England was appropriate
before Virginia existed but once
Virginia was formed it had its own
system of tribunals and courts in which
a Virginian brand of the common law
might develop.
In contrast, other states adopted
reception statutes which appear to
incorporate the English common law as it
existed immediately prior to adoption of
the statute. Here is an example from
North Carolina.
Reception
Statute of North Carolina (1778)
“All such
parts of the common law as were
heretofore in force and use within this
State, or so much of the common law as
is not destructive of, or repugnant to,
or inconsistent with, the freedom and
independence of this State and the form
of government therein established, and
which has not been otherwise provided
for in whole or in part, not abrogated,
repealed, or become obsolete, are hereby
declared to be in full force within this
State.”
New York law provides an example of
incorporation of English common law
prior to the American Revolution.
Reception Statute of New York
(1786)(based on article 35 of NY
Constitution, 1777)
“Whereas by
the Constitution of this state it is
declared that such parts of the common
law of England, and of the statute law
of England and Great Britain, and of the
acts of the Legislature of the colony of
New York, as together did form the law
of the said colony, on [19 April 1775]
(except such parts thereof as are by the
said Constitution abrogated) shall be
and continue the law of this state;
subject to such alterations and
provisions as the Legislature of this
state shall, from time to time, make
concerning the same. And whereas such of
the said statutes as have been generally
supposed to extend to the late colony
and to this state, are contained in a
great number of volumes [a commission is
established to gather together and put
before the legislature the appropriate
statutes].”
In some cases, the act of reception is
included in a state constitution rather
than in a statute passed by the
legislature. Here is example of
including the act of reception in a
state constitution from Delaware.
Reception
Provision of the Delaware Constitution,
art. 25 (1776)
“The common
law of England, as well as so much of
the statute law as has been heretofore
adopted in practice in this state, shall
remain in force unless they shall be
altered by a future law of the
Legislature, such parts only excepted as
are repugnant to the rights and
privileges contained in this
Constitution and the declaration of
rights, &c., agreed by this
convention.”
The District of Columbia is not a
state. It was formed from territory
acquired from Virginia and Maryland. The
U.S. Constitution gave Congress complete
legislative authority over the district
but it declined to fashion its own
reception statute. Rather, when Congress
provided for the law applicable to
courts operating within the District of
Columbia it initially opted to rely on
the law of the states from which
territory the District was formed.
Reception
statute for the District of Columbia,
1801
“. . . the
laws of the state of Virginia, as they
now exist, shall be and continue in
force in that part of the District of
Columbia, which was ceded by the said
state to the United States, and by them
accepted for the permanent seat of
government; and that the laws of the
state of Maryland, as they now exist,
shall be and continue in force in that
part of the said district, which was
ceded by that state to the United
States, and by them accepted as
aforesaid.”
By current statute, the District of
Columbia incorporates the law of
Maryland as it existed in 1801 (but not
the law of Virginia).
As states were later admitted to the
Union, they too adopted English common
law from one time frame or another. The
body of reception statutes generally
form an inconsistent mess that can be
quite confusing. A summary of state
reception statutes and constitutional
provisions appears in Joseph Fred
Benson, Reception of the Common Law
in Missouri: Section 1.010 as
Interpreted by the Supreme Court of
Missouri, 67 Mo.
L. Rev. 595, 607 (2002)
(including summary information about
state law in an appendix). [ http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3528&context=mlr
]
The above information should suggest to
you a potential complexity. Note that
each of the several states might use a
somewhat different form of the common
law. These differences arise for three
distinct reasons. First, the states have
adopted the English common law using
different cut-off dates for reception.
As the English common law developed and
evolved between the earliest and the
latest dates for reception, the date of
reception impacts the structure of the
substantive law incorporated. Second,
from the date of reception, the common
law will continue to evolve within the
court system of each state; however,
there is no assurance that this
evolution will be uniform across the
various state court systems. Third, in
all cases the states indicate that their
legislatures may modify the common law
by statute. There is no assurance that
modifications to the common law will be
uniform across the several states.
In fact, the common law is not uniform
in all respects across the several
states for all of these above listed
reasons. This is, of course, a problem
created by the multiple state court
systems that are a byproduct of the
federal system of government in the
United States.
Though we will not study it in detail,
for completeness it bears noting that
not all territories subject to the
jurisdiction of the United States have
received the English common law in one
form or another. The state of Lousiana
has incorporated large parts of the
civil code in its substantive law, as
has the territory of Puerto Rico.
No federal common law
Criminal law
There is no federal common law of
crimes. Even though there is a federal
court system that operates in parallel
with the state court systems within
which a federal common criminal law
might be developed, early in the history
of the United States, the U.S. Supreme
Court held that the federal courts did
not have the power to develop a federal
common law of crimes. United States v.
Hudson and Goodwin, 11 U.S. 32 (1812).
The Court held that “[t]he legislative
authority of the Union must first make
an act a crime, affix a punishment to
it, and declare the Court that shall
have jurisdiction of the offence.” The
absence of federal power means at least
several things. First, federal courts
may not conduct trials of defendants for
committing common law crimes. Second, it
follows from this that the federal
courts may not contribute to the
development of common law crimes. Third,
Congress must specify by legislation the
extent of federal court jurisdiction
over crimes. Thus, federal criminal law
is exclusively statutory both in its
form and administration.
Civil law
Though early in the nation's history
the Supreme Court made clear that the
federal courts did not have the power to
deal with the common law of crimes, the
history with respect to the civil
aspects of the common law is more
complicated.
Swift v. Tyson, 41 U.S. 1 (1842), was a
case brought in diversity in the Circuit
Court for the Southern District of New
York on a bill of Exchange accepted in
New York in which the Supreme Court of
the United States determined that United
States federal courts hearing cases
brought under their diversity
jurisdiction pursuant to the Judiciary
Act of 1789 must apply the statutory law
of the states when the state legislature
of the state in question had spoken on
the issue but did not have to apply the
state's common law in those cases in
which that state's legislature had not
spoken on the issue. The Court's ruling
meant that the federal courts, when
deciding matters not specifically
addressed by the state legislature, had
the authority to develop a federal
common law.
Erie Railroad Co. v. Tompkins, 304 U.S.
64 (1938), is a landmark decision by the
Supreme Court of the United States in
which the Court held that federal courts
did not have the judicial power to
create general federal common law when
hearing state law claims under diversity
jurisdiction. In reaching this holding,
the Court overturned almost a century of
federal civil procedure case law, and
established the foundation of what
remains the modern law of diversity
jurisdiction as it applies to United
States federal courts. [Read INTRO
TEXT, Law Applied in the Federal
Courts at pp. 50-52.]
Binding versus persuasive precedent
Precedent can be binding or merely
persuasive. Binding precedent exists
when a decision comes from a court that
is either the same court in an earlier
decision or a higher court in a direct
supervisory or review role to the court
considering the question. For example, a
prior decision of the Court of Appeals
in New York would be binding precedent
on a trial court or a lower appellate
court in the state of New York. A
decision of the Supreme Court of
California, in contrast, could be merely
persuasive authority for a question
before a trial court or a lower
appellate court in the State of New
York. [Read INTRO
TEXT, Techniques in the Use of
Precedent, pp. 59-65, Two Puzzles in
Precedent, pp. 65-68.]
Adversarial system rather than an
investigative system and use of a jury
Two other features of the common law
tradition are worth noting. In a common
law court, the judge functions much like
a moderator or an umpire, rather than an
investigator. The theory is that the
truth will emerge in an adversarial
system in which two opposing parties
contest to have their view of justice
accepted.
In a common law tradition, it is
typical for a jury of ordinary citizens
(i.e. people without any particular
legal training or expertise) determine
the facts of the case and to render a
verdict based upon instructions from the
judge as to the applicable law. [Read INTRO
TEXT, Characteristics—Trial at pp.
115-120.]
Importance to introductory legal
studies in the United States
The first year of study for a JD degree
in a United States law school focuses
extensively on common law materials.
Indeed, a majority of the required
courses focus on the common law. A
typical first year course schedule would
include courses in contracts, torts,
property, criminal law, civil procedure
and constitutional law. Of these
subjects, each of contracts, torts,
property and criminal law include large
components of the common law. Indeed,
these introductory courses could be
taught using exclusively common law
materials. It is more typical, however,
to teach such courses using a
combination of common law materials and
statutory materials because in the
modern systems of laws in the United
States the operative substantive law is
a combination of the older, traditional
common law, as supplemented by more
modern statutory compilations.
Reliance
on precedent gives rise to the
technique of briefing cases
One exercise often repeated by law
students is to “brief” a case. In a case
brief, the student is supposed to
summarize the facts of legal
significance to the decision, the legal
issue to be decided, the applicable
legal rule or rules to be applied, and
the holding. It is usual that a large
portion of the cases studied and briefed
in law school are cases which present
issues of first impression. This is
because those cases are the ones that
set forth a new legal principle which
added to the body of substantive law. [Read INTRO
TEXT, Chapter 2, Legal Education at
pp. 17-25.]
Comparison with civil law
Civil Law, in contrast, is codified.
Countries with civil law systems have
comprehensive, continuously updated
legal codes that specify all matters
capable of being brought before a court,
the applicable procedure, and the
appropriate punishment for each offense.
Such codes distinguish between different
categories of law: substantive law
establishes which acts are subject to
criminal or civil prosecution,
procedural law establishes how to
determine whether a particular action
constitutes a criminal act, and penal
law establishes the appropriate penalty.
In a civil law system, the judge’s role
is to establish the facts of the case
and to apply the provisions of the
applicable code. Though the judge often
brings the formal charges, investigates
the matter, and decides on the case, he
or she works within a framework
established by a comprehensive, codified
set of laws. The judge’s decision is
consequently less crucial in shaping
civil law than the decisions of
legislators and legal scholars who draft
and interpret the codes.
Historical
considerations
Most nations today follow one of two
major legal traditions: common law or
civil law. The common law tradition
emerged in England during the Middle
Ages and was applied within British
colonies across continents. The civil
law tradition developed in continental
Europe at the same time and was applied
in the colonies of European imperial
powers such as Spain and Portugal. Civil
law was also adopted in the nineteenth
and twentieth centuries by countries
formerly possessing distinctive legal
traditions, such as Russia and Japan,
that sought to reform their legal
systems in order to gain economic and
political power comparable to that of
Western European nation-states.
To an American familiar with the
terminology and process of our legal
system, which is based on English common
law, civil law systems can be unfamiliar
and confusing. Even though England had
many profound cultural ties to the rest
of Europe in the Middle Ages, its legal
tradition developed differently from
that of the continent for a number of
historical reasons, and one of the most
fundamental ways in which they diverged
was in the establishment of judicial
decisions as the basis of common law and
legislative decisions as the basis of
civil law. [Read INTRO TEXT, Chapter 1,
Historical Background at pp. 9-16.]
[For an historical analysis of the
origins of the common law rules of
liability as being grounded in a variety
of legal traditions, and centered on the
idea of vengeance and identification of
the person or thing against which
revenge might properly be taken, see CL
TEXT,
Lecture I.--Early Forms of Liability.
This reading is important background but
if you are short of time, focus on the
materials in the above Lecture Topic 2
and the related citations to INTRO TEXT
before reading CL TEXT.]
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