Final Term Paper: Introduction to Common Law

Israa ALBINFALAH

Today, Common Law stands as one of the most widespread legal systems globally. It
was initially conceived in opposition to the multitude of local customary laws governing
England and swiftly expanded throughout the 20th century finding adoption in nations
representing approximately one-third of the world's population (Session 2). F.W. Maitland
characterized common law as a “rapid development of legal principles applicable throughout
the entire land, where local variations gradually diminish, leading to the establishment of a
unified legal system.”
The definition of common law has evolved over time. R.A. Posner defines Common
Law as a “body of law primarily created by judges through their decisions rather than by
legislative bodies or constitutional framers”. A fundamental characteristic of common law is
its reliance on court precedents and decisions, rather than statutes. It places strong emphasis on
the value of case law and adheres to the principle of stare decisis, which holds that rulings from
higher courts must be followed by subordinate courts within the same jurisdiction.
How does Uwe Kischel characterize the distinctiveness of common law's legal
reasoning compared to the civil law tradition? Can common law's distinct way of thinking the
law adapt to contemporary legal challenges and societal changes?
This essay sets the stage for a comprehensive exploration of common law, its distinctive
characteristics, and its role within the broader legal landscape. By examining its historical
development, key principles, and contemporary relevance, we gain insight into the complexities
and nuances of this foundational legal tradition. By means of critical analysis and
multidisciplinary discourse, this essay attempts to enhance the understanding of the dynamic
character of common law and its continuous influence on legal systems around the globe.

Understanding Common Law through its historical development

To understand the Common Law Perspective, one must delve into its historical
evolution and fundamental principles. Common law in England developed as a result of
medieval rulers consolidating their authority after the Norman Conquest in 1066. They created
the writs system of legal action, which offered certain remedies but frequently proved to be
impractical. Consequently, the Court of Equity, or Chancery, arose to apply equitable principles
for just outcomes, coexisting with common law from the mid-1800s onwards, with distinct
equity courts persisting in certain US states. In contemporary common law practice, some writs,
such as habeas corpus, remain pertinent.
During the Middle Ages, English common law operated alongside diverse legal systems
such as local customary law and canon law within church courts. However, by the seventeenth
century, common law gained ascendancy, largely due to Parliament's declaration of its
paramountcy and its function as a check on the king's authority. This contrasted sharply with
continental legal trends, where scholars and legal humanists emphasized common civil law
traditions. William Blackstone's seminal work, Commentaries on the Laws of England,
exemplifies the pride English jurists held in the unique aspects of English legal practices.
Notably, Blackstone's Commentaries served as a primary source of common law decisions in
American law predating the establishment of the United States.
The colonial policy implemented in 1722 stipulated that any newly discovered and
inhabited territory by English settlers would be governed by English law, underscoring the
unity of common law. English colonizers introduced common law to every settlement they
established, though adaptations were necessary to accommodate to local circumstances. The
continued presence of common law in former British colonies demonstrates the practicality of
the English legal system. Despite its historical diversity in legal systems, common law
possesses a distinctive unitary nature, largely attributed to the development of English law. The
widespread use of the English language further reinforces the unitary character of common law.
Given that the majority of common law jurisdictions are situated in English-speaking nations,
common law and English law are identical.

Analyzing the statement: the distinctiveness of Common Law thinking

Uwe Kischel highlights the unique features of common law, contrasting it with civil
law traditions. These include the fact that it is heavily dependent on case law, that precedents
are binding, that statutory law is given less weight and finally that there is less emphasis on
academic legal literature (Session 3). Even while these qualities set it apart from other legal
systems, the difference lies more on emphasis rather than on substantive differences. The
common law tradition perceives law, also referred to as judge-made law, as organic, likening
it to a dynamic organism capable of adapting to new circumstances. It evolves progressively,
with new laws filling gaps in the legal framework. Common law prioritizes pragmatism,
focusing more on reaching just conclusions in individual situations rather than strictly adhering
to rules. The dynamism of the common law system entrusts judges with the responsibility of
delivering equitable solutions tailored to specific circumstances, renouncing to strict
rationalization of the law.
Common law systems have many practical features that allow a bigger flexibility when
understanding the law. Over 150 years of British rule came to an end on July 1, 1997, when
Britain officially turned over authority of Hong Kong to China. In the case of Hong Kong, it
maintained to this day the common law legal system. Article 84 of the Basic Law of Hong
Kong SAR establishes provisions that allow Hong Kong courts to refer to case precedents from
other countries under common law jurisdictions. In essence, this clause permits Hong Kong
courts to decide matters by taking into account and applying norms and precedents from other
common law countries. By doing this, the courts in Hong Kong will be able to draw on the
collective legal knowledge and expertise of other common law systems, which will improve
the uniformity and coherence of judicial rulings. The Article gives the Hong Kong Judiciary
and the Court of Final Appeal the power to invite judges from other common law jurisdictions
to take part in the legal proceedings. Hong Kong's acknowledgment of the significance of
preserving close relations with other common law jurisdictions, and respecting the common
law in its judicial processes, is reflected in Article 84 of the Basic Law. It acts as a means of
enhancing Hong Kong's legal system and fortifying its commitment to the common law
heritage.
Generally, the common law legal system has a positive outcome on the economy of a
country. Singapore, another well-known nation that has maintained the common law system
after obtaining independence in 1965, is standing as a major international financial center. The
country’s economic prosperity is largely attributable to its adherence to common law. For
instance, Singapore Court of Appeal tackled problems with contract interpretation under
common law in the matter of Far East Square Pte Ltd v. Yau Lee Construction Pte Ltd [2019]
SGCA 36. The case served as a reminder of how important it is to respect the parties' objectives
as stated in the contract, which required careful consideration of the contract's wording as well
as the local environment. This ruling demonstrated the judiciary's capacity to employ well-
established legal theories to settle disputes fairly and efficiently, reinforcing Singapore's
dedication to common law values and norms. The country provides a perfect illustration of how
the principles of common law may generate a suitable legal environment for innovation, equity,
and sustainable development.

Contrasting Common Law and Civil Law traditions : differences and critiques
The world's legal landscape is dominated by two primary traditions: Common Law and
Civil Law, each possessing distinct characteristics, principles, and methodology. It is crucial to
understand their similarities and differences to comprehend how legal systems interact with
societies around the world. Firstly, Common Law and Civil Law diverge in their historical
origins and geographical spread. Civil law, rooted in Roman law and primarily originating in
Europe, expanded worldwide through colonization or voluntary adoption by other nations.
Civil law relies heavily on statutes and extensive legal codes as its primary sources of law,
distinguishing it from common law systems. Although the courts interpret and enforce these
regulations, their rulings do not hold the same binding authority as in common law systems.
Judges may bring formal charges in civil law jurisdictions, investigate cases, and make
decisions, but their authority is however constrained by the comprehensive legal codes, with
the decisions of legislators and legal scholars playing a significant role in interpreting and
drafting laws.
Although the Common Law legal system is crucial and important today, many scholars
came up with several critiques of the system that prioritizes the civil law system. For instance,
Professor Adrian Vermeule criticizes the dominant position of courts in the American
legislative process in his most recent work, "Law and the Limits of Reason". This is one of the
critiques I most agree with. Vermeule challenges the idea that judges are not better qualified to
create law just because of their education and experience. Rather, he argues that lawmakers are
better at passing laws because they are more varied and answerable to the people. He criticizes
the common law's dependence on precedent, pointing out that judges and solicitors tend to be
insular, and that the system has been slow to evolve. His views, influenced by certain ideas of
Jeremy Bentham, depart from those of common law advocates such as Edmund Burke and F.A.
von Hayek, with whom he disagrees.
After adopting English Common law, several nations, especially those in the Middle
East, are frequently referred to as "Common law islands in a civil law ocean". How do Common
Law and Civil Law traditions intersect, reconcile, and influence each other in multicultural
legal systems? Two prominent instances are the Dubai International Financial Centre (founded
in 2004) and the Abu Dhabi Global Market (founded in 2013). With respect to civil and
commercial matters, these organizations function as independent legal and regulatory
jurisdictions with their own common law-based frameworks that include judicial procedures,
rules, and court systems (Session 2). The World Bank, in its Doing Business Reports (2004 and
2006), connected a country's legal system to its economic well-being. Within the financial and
economic community, there is a general consensus that legal frameworks grounded in
"common law" are more suited to promoting prosperity and expansion than legal frameworks
formed from "civil law." Although common law systems offer legal certainty, protection of
property rights, and enforcement mechanisms, vital for economic activity, critics argue that the
relationship between legal systems and economic growth is complex and that other factors,
such as political stability, institutional quality, and cultural factors, play significant roles in
determining economic outcomes.

In conclusion, the unique characteristics of common law and its historical development
highlight its continued significance in modern legal frameworks. common law has spread
around the world and is known for its practicality. Comparing civil law traditions helps to
clarify the subtleties and complexity of legal thinking, which improves interdisciplinary
conversation and allows for a better understanding of international legal systems. Kischel's
observation is still relevant today, demonstrating the flexibility and liveliness of common law
reasoning when dealing with difficult legal issues.
Common law has unique characteristics compared to civil law traditions, but it is not
without criticism, particularly in regard to its reliance on precedent and the judiciary's
involvement in enacting laws. This criticism highlights continuous discussions over the
effectiveness and flexibility of common law systems in legal academia.
Common law studies essentially reveal the importance of common law as well as its
difficulties in modern legal systems. Even if it upholds the values of equality, persistent
criticisms force us to consider how it has changed and how applicable it is in contemporary
legal settings. The development of common law is still a dynamic and ever-evolving
phenomena, reflecting greater societal trends and goals for justice and equality.
Word count: 1918

SOURCES: BIBLIOGRAPHY & WEBOGRAPHY

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