Common Law v Civil Law

The common law of England has relied on precedent more than statute and codifications and has been far less amenable than the civil law.- Justin Santiago

Common law therefore arose to refer to principles of law that were applied consistently by the common law judges reflecting precedent derived from centuries of judgments. These principles of law are derived from multiple sources including tradition, custom, precedent and academic writings and increasingly statutes, EU Law and Secondary legislation. There is no one set of rules unlike the code civil which is widely used in civil law jurisdictions. It is a tradition dominated by a body of judicial decisions that is relied upon to decide on future cases. Thus we have judicial decisions that annunciate the law and which are followed religiously in subsequent cases i.e. the neighbourhood principle in Donoghue v Stevenson which laid down the duty of care by manufacturers to the ultimate customer and Carlill v Carbolic Smoke Ball which laid down the obligations by an offeror in unilateral contracts.

Parliament as the supreme law making body has passed more laws in recent years with the increase in electoral rights and representation in Parliament with the growth in importance of the doctrine of parliamentary supremacy. It is true to say that with each bill of parliament that is passed, more law is becoming codified. Judges are able to innovate less and less as opposed in the earlier days when there was not much legislation to rely on. However there is still a heavy reliance on judicial decisions. This is because statutes are written in very specific terms and these will be interpreted according to case law. Take for example Section 2 of the Homicide Act which allows for an “abnormality of mind” as a defence to murder. The abnormality of mind state would be interpreted according to the decision in R V Byrne where Lord Parker CH in the Court of Appeal defined abnormality of mind as "a state of mind so different from that of ordinary human beings." Thus legislation although important is still subject to interpretation by judges because there is a limit to how much detail can be infused into the written law.

Courts are bound by the doctrine of stare decisis which affords certainty and predictability in the outcomes of cases. Under this doctrine courts will follow decisions of courts that are of the same standing or higher and will look to these decisions for direction in deciding a case. This is an inductive form of legal reasoning which differs from the civil law system where courts adopt a deductive form of reasoning on the basis of general rules and principles of the code which are drafted in broad strokes in order to apply to a wide variety of situations.

Here lies one of the major problems of the English common law as wrong or anachronistic decisions will have to upheld by the lower courts due to the doctrine of stare decisis which enables prior injustices to be perpetuated. Case in point is the requirement of objective recklessness in criminal damage cases for more than 20 years following R v Caldwell which was finally overulled by R v G (and another).

There is also a degree of uncertainty as the judiciary can select from multiple case laws decided beforehand as authorities where binding precedents can be avoided by distinguishing based on very fine lines. Thus a case involving mistake as to identity like Ingram v Little allowed for contracts made inter prasentes to be voided was distinguished from Lewis v Avery merely because the defendant in the earlier case had checked on the identity of the rogue that they were dealing with.

If a case came before a court did not have a precedent,the claim would be refused under common law. This caused much unfairness and injustice and led to the establishment of the principles of equity and this is one of the rare instances of the amenability of the common law. However very strict restrictions would apply as in the case of promissory estoppel an equitable principle allowed in cases where there was no consideration but which required there to be

Precedent also may not necessarily be followed where there are changing social circumstances where the courts may not follow earlier decisions as in the case of British Railway Board v Herrington the law of negligence shifted the burden of the duty of care to the railway authorities to have their line fences mended. In Miliangos v Gorge Frank (Textiles) Ltd changes in international trade and the statue of the sterling forced the House of Lords to review earlier decisions that all awards of damages in an English court be made in sterling. The courts could also choose to not follow a precedent which is no longer in step with the roles of individuals in society : R v R where the House of Lords overturned a centuries old common law rule that rape within marriage was not a crime.

The legal system is characterized by the presence of a jury and conducted in an adverial nature of questioning and producing evidence. The law is therefore seen as a system of belief that an answer will be found to any legal problem so long as all the facts are adduced and argued out among the parties in court. However the lack of intervention of the judge unlike the civil law system which is more inquisitorial tends to lead to situations which does not look for truth but rather to see which side has the better argument and to resolve the dispute between the parties. This can lead to situations where the side with the more eloquent lawyer would win the case especially with the presence of a jury (another feature of the common law) who are more easily swayed.

The English legal system is bound to remain as a common law system until the birth of a written constitution and mechanisms that will ensure they are used as a reference point for judicial decisions. The incorporation of EU law and ECHR may see some convergence between common law and civil law principles as well as the adoption of alternate dispute resolutions which is more inquisitorial in nature are beginning to rear its head. However until there is a serious breakdown in the present common law tradition it is difficult to an alternative system supplanting it.