History Common Law World

 


In jurisdictions around the world[edit]

The common law constitutes the basis of the legal systems of:

  • United States (both the federal system and the individual states (with the partial exception of Louisiana)),

and many other generally English-speaking countries or Commonwealth countries (except the UK's Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the bijuridicial law or civil code of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. Guyana and Saint Lucia have mixed Common Law and Civil Law systems.

The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.

Scotland[edit]

Scotland is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages), founded on the customary laws of the tribes residing there. Historically, Scottish common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent,[127] and principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same, but in many matters (particularly those of UK-wide interest), they are similar.

Scotland shares the Supreme Court with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK law of negligence is based on Donoghue v Stevenson, a case originating in Paisley, Scotland.

Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom (before October 2009, final appellate jurisdiction lay with the House of Lords).[128]

United States[edit]

States of the United States (17th century on)[edit]

The centuries-old authority of the common law courts in England to develop law case by case and to apply statute law[90]—"legislating from the bench"—is a traditional function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution.[24] Justice Oliver Wendell Holmes Jr. summarized centuries of history in 1917, "judges do and must legislate” (in the federal courts, only interstitially, in state courts, to the full limits of common law adjudicatory authority).[91]



Louisiana (1700s)[edit]

Under Louisiana's codified system, the Louisiana Civil Code, private law—that is, substantive law between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from Roman law, transmitted through French law and Spanish law, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the Napoleonic Code, as the latter was enacted in 1804, one year after the Louisiana Purchase. However, the two codes are similar in many respects due to common roots.

Louisiana's criminal law largely rests on English common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure.

Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.[130]



New York (17th century)[edit]

The original colony of New Netherland was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. In 1664, the colony of New York had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the Netherlands were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers.[129] When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The influence of Roman-Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.



California (1850s)[edit]

The U.S. state of California has a system based on common law, but it has codified the law in the manner of civil law jurisdictions. The reason for the enactment of the California Codes in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)


United States federal courts (1789 and 1938)

The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining broad statutory language (connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law.

Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution.

In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent,[131] and held "There is no federal general common law," thus confining the federal courts to act only as interstitial interpreters of law originating elsewhere. E.g., Texas Industries v. Radcliff, 451 U.S. 630 (1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.

Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); see also International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding); but see National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.[132]


United States executive branch agencies (1946)

Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the Administrative Procedure Act of 1946.

For example, the National Labor Relations Board issues relatively few regulations, but instead promulgates most of its substantive rules through common law (connotation 1).




India, Pakistan, and Bangladesh (19th century and 1948)[edit]

The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj.

Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.[133] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[134] Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.[135] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, 
in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.[136]

When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.[137]
 After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India.[138] It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.



Post-partition India (1948)[edit]

Post-partition, India retained its common law system.[140] Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the United Nations guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.

The exception to this rule is in the state of Goa, annexed in stages in the 1960s through 1980s. In Goa, a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.

Post-partition Pakistan (1948)[ 

Post-partition, Pakistan retained its common law system.[141]

Post-partition Bangladesh (1968)[ 

Post-partition, Bangladesh retained its common law system.

Canada (1867)[ 

Canada has separate federal and provincial legal systems.[142]

Canadian provincial legal systems[ 

Each province and territory is considered a separate jurisdiction with respect to case law. Each has its own procedural law in civil matters, statutorily created provincial courts and superior trial courts with inherent jurisdiction culminating in the Court of Appeal of the province. These Courts of Appeal are then subject to the Supreme Court of Canada in terms of appeal of their decisions.

All but one of the provinces of Canada use a common law system for civil matters (the exception being Quebec, which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).


Canadian federal legal system[ 

Canadian Federal Courts operate under a separate system throughout Canada and deal with narrower range of subject matter than superior courts in each province and territory. They only hear cases on subjects assigned to them by federal statutes, such as immigration, intellectual property, judicial review of federal government decisions, and admiralty. The Federal Court of Appeal is the appellate court for federal courts and hears cases in multiple cities; unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits.[143]

Canadian federal statutes must use the terminology of both the common law and civil law for civil matters; this is referred to as legislative bijuralism.[144]

Canadian criminal law[ 

Criminal law is uniform throughout Canada. It is based on the federal statutory Criminal Code, which in addition to substance also details procedural law. The administration of justice are the responsibilities of the provinces. Canadian criminal law uses a common law system no matter which province a case proceeds.
















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