Week 5 - Common law

Question 1

What are key characteristics of the Common Law system?

Answer 1

In Common Law, judges shape the law by following earlier decisions. Precedents are binding, while statutes play a secondary role. Legal scholars have less influence, and the law evolves case by case.

Question 2

How do Common Law courts create legal principles?

Answer 2

They don’t create abstract legal rules to decide future cases, but they decide only the specific case before them.

In future cases, judges are inductively working out principles from individual decisions, rather than deducing outcomes from general principles. Decisions made centuries ago can still hold relevance today.

Question 3

How does the Common Law system define itself in relation to Civil Law?

Answer 3

Common Law defines itself by what it isn’t. It distances itself from the codified, theory-heavy Civil Law systems, focusing instead on judicial decisions and practical reasoning.

Question 4

What did Blackstone say about judges’ roles?

Answer 4

According to Blackstone, the statement that common law can be considered as judge-made law, isn’t the classic English view.

Blackstone explained that judges are sworn to decide cases according to the established laws and customs of the land. Their role is to maintain and explain the law, not to make new laws.

Question 5

Why do judges in a civil law system often share the same frustrations as judges in a civil law system?

Answer 5

Because judges in common law systems are sworn to determine, not according to their own judgements, but according to the known laws, they share the same problem as judges in a civil law system.

Many judges feel the decisions they must make in certain cases aren’t ideal, but they believe changing or creating laws is the legislature’s responsibility, not the judges.

Question 6

How is case law developed in Common Law systems?

Answer 6

Case law is created through inductive reasoning. Judges don’t start from general rules but look at past cases and their decisions, gradually extracting principles that help solve the current case.

Question 7

What did Lord Parke say about common law and how does inductive reasoning play a role?

Answer 7

Lord Parke said common law applies established rules from past cases to new situations for uniformity and consistency, even if judges find them imperfect. Common law uses inductive reasoning—deriving rules from past cases—which then can be applied deductively to new cases. This approach gives judges flexibility to decide case-by-case.

Question 8

How does legal development take place in common law systems?

Answer 8

Judges refer to previous decisions, invoking a general principle from these cases. Legal development is a slow process that evolves over time through a variety of cases and judgements.

Question 9

What are some criticisms of relying on previous decisions in common law?

Answer 9

1. Judges may sometimes base their decisions on obiter dicta. Here, the question can be asked if the judge has too much freedom.
2. This may conflict with the idea of common law as a system which develops slowly from the treatment of individual cases, moving uninterrupted by means of analogy from decision to decision. Too much independent or creative thinking.
3. It can be seen as undemocratic. It puts significant power in the hands of the unelected judges instead of the elected representatives.

Question 10

What is the rule of stare decisis in common law?

Answer 10

It is the binding force of precedent that requires judges to generally follow earlier decisions in similar cases.

Question 11

The rule of stare decisis requires a rule from a certain case to be given binding force in another case when three conditions are met. What are these conditions?

Answer 11

1. The rule was necessary to the outcome of the case (ratio decidendi);
2. The decisions of the court in case A are binding, as a matter of hierarchy, on the court in case B;
3. There are no relevant distinctions between cases A and B.

Question 12

In the common law systems, the distinction between the ratio decidendi and the obiter dicta are important. What doe these mean?

Answer 12

The ratio decidendi are the conclusions that where neceserry to the outcome of a case. These are the essential elements of a judgement that create binding precedent an guide future interpretations.

The obiter dicta are the conclusions that were not necessary for the outcome of the case. These are based on the assumption that the judge did not give as much thought to them.

Question 13

In common law, how strictly is the ratio decidendi applied?

Answer 13

Only the core of the legal rule (ratio) is binding, not its exact wording. Judges apply it flexibly by always referring to the case’s facts, allowing broader or narrower phrasing.

Question 14

Indentifying the ratio decidendi can present challenges. For instance, when there are multiple judges but here is no clear majority endorsement. How do judges identify the ratio decidendi?

Answer 14

There is no consensus in how judges approach this task. Because there is no method, the ratio decidendi is whatever later decisions conclude it is.

Question 15

When is a ratio decidendi considered binding?

Answer 15

Only when it comes from a court that has the authority to bind other courts. Decisions of courts lower in the hierarchy are not binding.

Question 16

Ratio decidendi are only binding when the court which pronounces it has te power to bind it. Decisions of courts lower in the hierarchy are not binding. Are courts bound by their own precedent?

Answer 16

Initially, the House of Lords affirmed the binding force of its own cases.

Later this changed. It allowed the House of Lords to depart from its own previous decisions when it appears right to do so. They will usually follow their old decisions, but can also go against them.

Question 17

What functions does statutory law serve in a common law system?

Answer 17

1. Statutory law refines specific point within case law;
2. It is used to address or overturn decisions which are seen as inappropriate or undesirable from a policy perspective.

Question 18

In common law systems, statutes are still considered a secondary, faintly suspect source. Why is this?

Answer 18

Statutes deviate from the solid and reasonable common law, otherwise there would have been no need for the statute.

Question 19

What role does the academic fulfill in the common law system?

Answer 19

In contrast to the civil law system, where legal literature is frequently cites and discussed in cases, such scholarly engagement is relatively rare within the framework of the common law system. The legal academics play a limited role in the common law system.

Question 20

According to comparative lawyers, common law is judge-made. This concept differs from the classical English position. How does the classical English position differ from the comparative lawyers?

Answer 20

According to the classical English approach, common law is not made, but rather discovered by judges. The judge is tasked witch maintaining and expounding existing legal principles.

Question 21

Blackstone sees an exception to the classical English approach. What is this exception?

Answer 21

According to him, the classical English approach can’t be used in exceptional cases in which existing law turns out to be unreasonable and thus actually needs to be changed.

However, even in such cases, judges do not create new law, but rather clarify or correct misinterpretations of existing ones. It is declared that such a sentence was not bad law, but is was not law.

Question 22

What drives legal decisions in common law?

Answer 22

The specific facts of the case, not abstract legal rules.

Question 23

How are court decisions typically presented in common law?

Answer 23

With full or detailed descriptions of the facts, since the law “lives by facts.”

Question 24

How does the history of common law systems differ from the history of civil law systems?

Answer 24

In theory, the common law of the 21st century is the same as the common law of the 16th century.

This is a unique feature that many civil law countries do not have.

Question 25

How did the genesis of the common law take place?

Answer 25

The genesis of the common law was a gradual process, which did not involve formally overruling local or customary law, but rather saw these laws simply decrease in importance.

Question 26

The operation of the english legal system was marked for centuries by so called 'writs'. What are these?

Answer 26

Writs were royal commands which the plaintiff bought from the chancery and which ordered the competent sheriff to summon the defendant before the court.

Question 27

The common law tradition in the US is strongly influenced by the British. Their influence is particularly big in private law. The US is a federation. Each state has its own laws. How does state law relate to federal law?

Answer 27

There are certain fields where both the state and federal authorities have jurisdiction. In cases of parallel jurisdiction, federal law takes precedence over state law, but in areas reserved for the states, federal law does not apply.

Question 28

Does the common law of a state apply in federal courts?

Answer 28

In the landmark case of Erie Railroad Company vs. Tompkins, it was affirmed that federal courts must respect and apply common law of each state.

Question 29

Judicial review is common practice in common law systems. What does this mean?

Answer 29

It allows judges to review and potentially invalidate legislation or administrative actions that conflict with constitutional principles. It is a checks and balances structure in the legal and political system. Here we see the vital role of judges in the legislative process.

Question 30

How does the role of the judge differ in the common law system from the civil law systems?

Answer 30

In the common law system, judges will refrain from deriving a rule from previous cases which goes further then necessary to solve the specific case before the court. In the civil law system, the judge looks for general rules to apply universally in future cases.

Question 31

What way are general principles used in the civil law system and in the common law system?

Answer 31

General principles are broad statements which can be applied word for word like statutes, alway leading to a specific outcome. In de common law systems, general principles serve as guides, not rigid rules, to help decide individual cases based on their unique facts.

Question 32

How can cases be used as arguments in a common law system?

Answer 32

Decisions from earlier cases serve as arguments that can be utilized to resolve subsequent legal questions. Cases maintain legal authority in common law, unlike in civil law, where earlier cases are treated as mere shorthand symbols of the legal reasoning.

Question 33

How do common law and civil law systems differ in systemization?

Answer 33

In common law systems, the focus is set on resolving the immediate legal issue that is presented by individual cases, rather than on developing a legal system as a whole. In civil law systems, it places significant emphasis om systemization and conceptualization, aiming for a more consistent and codified legal framework.

Question 34

Siems, M. (2018), Common law and Civil law & mapping the World's Legal Systems, in Comparative Law. In this article, Siems explores the differences between civil law and common law systems, particularly focussing on various aspects on legal procedures. Summarize the differences between these legal systems.

Answer 34

1. In civil law systems, codes for various legal areas are common, aiming for abstract and systematic resolutions. In common law systems, they rely more on case law, with statutes seen as exceptions. 2. In civil law systems, interpretation methods have evolved to include historical context and objective purpose. In common law systems, interpretation traditionally focuses on the text, but has shifted towards legislative history and purpose. 3. In civil law systems, courts primarily apply the law without developing it, focussing on legal rules rather than facts. In common law systems, courts develop law through cases, focussing on individual conflicts and precedents, allowing for judicial creativity and considering legal history. 4. In civil law systems, legal scholarships play a significant role by influencing legislation, interpretation and court decisions. In common law systems, is is less intertwined with practice. 5. In civil law systems, trials are often written and there isn't a lot of confrontation. In common law systems, trials are oral and adversarial. 6. In civil law systems, judgments are more formalistic and abstract, whilst in common law systems the judgments are more detailed and precedent-based. 7. In civil law, decisions are reached in cases through deductive reasoning. A general legal rule is derived from a former case and is applied in the case in front of them. In a common law system, the judges use the method of inductive reasoning. This means that judges analyze former legal judgements on an abstract level to provide a solution for the case in front of them.