Common Law

Chakra Bahadur Rasaili

Birat Joshi
st
LLM 1 Semester Assignment
1. Background
The English common law system, which consists of several characteristic legal traditions, is
rightly regarded as one of the two major legal systems in the world, as well as one of the two
most influential. It is also comparable to the oldest, the civil law system, in the extent of its
spread throughout the world, and in its remarkable influence, having been adopted by a wide
range of countries and cultures, even in their post-colonial era. As with the civil law system,
the English legal system has been spawned from a particular sequence of historical events, a
set of distinctive legal sources, ideologies, doctrines, institutions, and a distinctive mode of
legal thought which, collectively, constitute the English common legal tradition.

This legal tradition was successfully ‘transplanted’ from England to many countries
throughout the world which are culturally, as well as geographically and linguistically,
different from England and English culture. Those traditions, in places, such as Australia,
South East Asia, India and Hong Kong, were then formalized and made part of the
predominant legal system of that particular jurisdiction. Remarkably, this uniquely English
set of sources, institutions and laws co-existed with the indigenous culture, religions and
local customs of those places, and a dualist system often emerged. Indeed, despite respecting
and preserving local culture, the administration of justice and government was soon
transformed into an infrastructure which was readily identifiable as the English style of
government and administration.

The law of England did not experience a "renewal" through Roman law nor was it
transformed by means of codification—the two principal characteristics of French and other
laws of the Romano-Germanic family. It developed autonomously and only in a very limited
way was it influenced by contacts with the European continent. The English jurist—who
sometimes underestimates the continuity of continental laws because he believes, incorrectly,
that the codification of these was a break with tradition—likes to emphasize the historical
continuity of his own legal system; to him it appears to be the result of a long tradition
untroubled by revolution and he is proud of this fact because he sees in it, and with good
reason, evidence of the great wisdom of the Common law, its ability to adapt, its lasting
value and those other qualities that correspond to the nature of English jurists.

However, the "historical" character of English law must not be exaggerated. The truth is that
the English like to emphasize the traditional character of their law, whereas Frenchmen are
rather more prone to emphasize the logical and rational character of French law. In reality the
part played in both laws by tradition and rationality is probably not very different since both
French and English law have had to adapt to new circumstances and meet new social needs
which have always been, and still are on the whole, very similar.

2. Definition of common law

What was this Common law—at the time called comune ley in "law French" which, from the
reign of Edward I (1272-1307) to the seventeenth century, was the spoken language of law
 while the written language, as in the rest of Europe, was Latin? Comune ley or Common law,
as distinct from local customs, is the law common to all England but in 1066 it did not exist.

The assemblies of free men, called County or Hundred Courts, applied only local custom; in
other words they only decided, according to custom, which of the parties had to establish his
claim by submitting to a system of proof that had no pretentions to rationality. Although they
remained competent in principle even after the Conquest, the Hundred or County Courts
were gradually replaced by new feudal courts (Courts Baron, Court Leet, Manorial Courts),
but these also decided disputes by applying the local customary law. Ecclesiastical courts set
up after the Conquest applied Canon law, common to all Christianity. The creation of the
comune ley, an English law truly common to the whole of England, was to be the exclusive
work of the royal courts of justice, commonly called the Courts of Westminster, and so
named after the place where they sat from the thirteenth century.

3. What common law is not?

The common law is not a written code. It is unlike the civil law of Rome as set forth in
Justinian’s Corpus Juris Civilis, which for the Middle Ages in Western Europe was the great
example of written law. The principles of common law have always eluded complete
embodiment in any code or collection of writings. Judicial decisions recorded on the plea
rolls of common-law courts, declaratory statutes, and learned treatises on the common law
may all express the principles of the common law, but these writings never comprise its
totality. Roman law as the ius commune of the Romano-Germanic system. It is an edifice of
European scholarship which aspired essentially to provide jurists with the framework,
vocabulary and methods to orient them in the search for just solutions

Second, the common law is not the law of special groups or interests. Consequently, it is not
to be identified with rules of canon law, particularly those which touch churchmen within the
ecclesiastical hierarchy.

Third, the common law, properly so called, is not local custom. It is not ordinarily spoken of
as the usage of a locality or territory such as the shire of Kent, the classic exemplum, which
was permitted to enjoy until 1926 its own peculiar rules of inheritance by gavelkind.
Moreover, the common law is not to be identified with rules of law administered by baronial,
manorial, or borough courts. Common-law rules are general rules whatever "smacks of a
specialty" is not common law.

Fourth, the common law is not the body of rules enforced in Chancery courts; that is,
common law is not to be identified with what is now called Equity. The distinction between
common law and Equity is technical and has special meaning for jurists, but it could not arise
until the late fourteenth century, when Chancery began to exercise an independent
jurisdiction.

4. The role of procedure in development of common law

The royal courts gradually enlarged their jurisdiction and, by the end of the middle ages, had
become in fact the only courts of justice. The feudal courts were eclipsed, as the Hundred
Courts had been; municipal and commercial courts handled matters of only minor
importance; and the ecclesiastical courts only heard cases in relation to marriage and the
discipline of clergy. The royal courts, however, only became the ordinary courts of general
jurisdiction in the nineteenth century. Until 1875 they remained, at least in theory, special
courts to which the citizen had no automatic access.

Historically, then, to press a claim before the king's courts was not a right but a favor which
the royal authority might or might not grant. The person who solicited this privilege had first
of all to address his request to an important royal official, the Chancellor, asking him to
deliver a writ, the effect of which was to enable the royal courts to be seized of the matter
upon the payment of fees to the Chancery. Apart from this procedure the judges could only
be seized directly upon a complaint or petition.

It was not automatic that a writ would issue from the royal Chancery or that the judges would
be convinced that they should take up a matter upon which a complaint was lodged. Royal
authority in the thirteenth century was not such that the chancellor might issue a writ or the
judges consent to render judgment in all cases. For some considerable time, each instance
had to be individually examined to determine whether it was expedient that the writ should
issue.

The procedure observed before the royal courts at Westminster varied according to the
manner in which the suit was begun. To each writ there corresponded in effect a fixed
procedure which laid down the others steps to be followed, the handling of incidental
questions, the admissibility of evidence, and the means of enforcing the decision. In any
given procedure the plaintiff and defendant had to be styled by specific wording; their
inappropriate use in another procedure would be fatal to the proceeding. In one type of action
the jury would be employed; in another, the evidence was adduced by "wager of law" (the
action would fail if the defendant were able to produce the required number of witnesses who
attested under oath to his credibility).

The Common law, in its origins, was made up of a number of procedures—"forms of

action"—upon the completion of which a judgment would be rendered, although the
substantive principle serving as the basis for the decision might itself be uncertain. The first
and foremost consideration for the litigant was to select the correct form of action or writ by
which the court could be seized, and thereby convince the court that it had jurisdiction in the
matter, and then to carry through with the formalistic procedure laid down.

The Common law did not appear to be so much a system attempting to bring justice as a
conglomeration of procedures designed, in more and more cases, to achieve solutions to
disputes. The twelfth century author Glanvill (d. circa 1190), and the thirteenth century
author Bracton (circa 1210-1268), describing the whole of English law by means of an
explanation (in Latin) of its principles, gave analyses of the various writs available in the
courts of Westminster. The chronicles known as the Year Books. The principal concern of
English jurists until the nineteenth century was directed to the various formalistic procedures
 put into operation by the writs, rather than to the elaboration of those principles upon which
just solutions to disputes would be based. Remedies precede rights. Attention was focused on
procedures because the procedures had a single purpose: the formulation of questions of fact
to be put to the jury.

Until the nineteenth century, it was more essential to determine the form of action that would
successfully bring a matter before the royal courts and to avoid the procedural pit-falls
existing at every turning in such a formalist system. If the trial were completed, the jury was
relied upon to render a reasonable verdict on the merits of the case. The first difficulty
however was to complete the trial, and for that it was necessary to pay especial attention to
all possible procedural obstacles. Moreover this procedure took place before a jury and
therefore strict rules of evidence had to be drawn up if reasonable verdicts were to be given
by jurors who were mostly uneducated and easily impressionable.

Procedural considerations, therefore, had a primary importance in the development of

English law. While jurists on the continent turned their attention principally to the
determination of the individual's rights and duties {i.e. substantive legal rules), English
jurists concentrated on matters of form and questions of procedure. If the historical
background of English law is to be grasped, the importance of procedure must always be
borne in mind.
5. Sources of Common law
5.1) Precedent
5.1.1) Differences with continental Europe
In French and other laws of the Romano-Germanic family, legal principles have always been
sought in a pre-established body of rules: in the Corpus juris civilis in former times and today in
codes. The decisions of the courts in the "countries of written law" (pays de droit ecrit) were of
secondary importance: non exemplis sed legibus judicandum est declares the Code of Justinian.
Decided cases may very well have some authority, but apart from quite exceptional
circumstances they are not considered to contain rules of law. This is, in fact, unnecessary
because quite independently of them there is a sufficient legal system.
The situation is quite different in England where the authority of Roman law was never
recognised in the same way as it was on the continent. The Common law, created by the royal
courts of Westminster, is a "judge-made" law. The role of judicial decisions has not only been to
apply but also to define the legal rules. In such circumstances it is only natural that in England
the judicial decision should have gained an authority quite different from whatever position it
may have in Europe. The rules set by decided cases must be followed or else the certainty of the
Common law will be destroyed and its very existence compromised.
The Common Law judge's technique of approaching the case-law and extracting its rules and
principles is the product of a mature and workman- like tradition of reasoning from case to case'.
The Anglo-American judge starts his process of decision with the individual precedents which
counsel for the parties before him have adduced as being most in point. In these precedents he
recognizes certain 'rules', that is, solutions of particular concrete living problems. He observes
how these 'rules' have been limited, extended, and refined by other precedents' and then,
constantly keeping the practical problems in the forefront of his mind, gradually draws out of
them high-level 'principles' and 'standards' which he uses to make a tentative resolution of the
case before him; his solution he then tests for its appropriateness against the background of
similar cases and finally arrives at the decision itself. All these steps take place in open
discourse: arguments for and against are presented in speeches and rebuttals between actual or
imaginary opponents. Ambulando solvitur..
The Anglo-American civil trial provides the ideal forum for raising problems in this discursive
manner. Throughout its history it has been strongly marked by the requirements of trial by jury,
although today it is only in the United States that the jury has any practical importance in private
law. The proceedings take place in a single session, spread over several days if necessary, and all
the facts, as well as questions of law, are orally presented there and then by the litigants and
discussed in an open and argumentative manner, with the judge taking part.
This inductive way of thinking, based on the particular factual problem of the case, and the
intensive treatment of precedents associated with it are not to be found in Continental law, at any
rate not to anything like the same extent. This is because Continental judges, in Italy and France
rather more than in Germany, are still imbued with the old positivistic idea that deciding a case
involves nothing more than 'applying' a particular given rule of law to the facts in issue by means
of an act of categorization; indeed, they often entertain the further supposition that ideally the
rules of law to be 'applied are statutory texts. But in fact everyone knows that in really difficult
cases the statutory text, if there is one, is too vague to provide a solution, and that the case can
only be solved by engaging with the rules, principles, and maxims developed by judges in
previous decisions. Nevertheless the traditional tropes are still trotted out, as can be seen in the
style of judgments in France and Italy, and also in those of the supreme courts in Germany.

5.1.2) The technique of distinguishing cases

The application of the rule of precedent in English law involves an analysis of these opinions or
commentaries accompanying the judicial decisions. Among the reasons given by the judge in
support of his decision, a distinction must be made between what is a necessary basis to this
decision the ratio decidendi of the judgment—and, on the other hand, what was obiter dictum,
that is to say what the judge has stated without being absolutely obliged to do so to reach his
decision. The ratio decidendi constitutes the "judge-made" rule which is then part of English law
and must be observed in future. Of course, the judge himself does not state what the ratio
decidendi is in that case; it is for a judge in a later case to do so in order to decide whether the
earlier decision applies in the matter he must decide. On the other hand, what is only obiter
dictum does not have such authority; its value is simply persuasive and therefore depends on the
prestige of the judge who made such remarks, the acuteness of his analysis and the circumstances
of the case.

5.1.3) Publication and citation of decisions

Some relaxation in the operation of the rule of precedent results from the conditions in which the
decisions themselves are reported. Only selected cases are published: 75 per cent, of the
decisions of the House of Lords, 25 per cent, of those of the Court of Appeal and 10 per cent, of
those of the High Court of Justice. It is possible therefore to eliminate a large number of
decisions considered unsuitable as precedents. This practice also avoids the danger that the
English lawyer will be immersed in a mass of precedents which would, in all like hood, lessen
their authority.

5.2) Statute Law

A second source of English law is legislation, that is to say statutes or Acts of Parliament and the
various rules and regulations made in execution of legislation by different authorities which
English authors group under the generic term delegated or subordinate legislation. It is to be
noted that there is no written constitution in England as found in continental European countries
or in the United States. The "constitution" is composed of a series of rules, sometimes in the
form of legislative provisions but most often judicial in origin, which guarantee fundamental
rights and freedoms and limit the arbitrary exercise of power by established authorities.
Parliament itself however is not limited in its sovereignty save by the force of public opinion.
According to the classical theory, legislation lato sensu is only a secondary source of law, a
series of corrigenda and addenda to the main body of English law formed by the decisions of the
courts: it only makes corrections and adjunctions to these judicially established principles or
renders them more specific. In this same classical view, therefore, one should not expect to find
in statutes an affirmation of leading legal principles but only particular solutions to specific
problems raised by the decided cases.
Such is what may be called the classical theory of legislation according to English tradition. It
may very well be, however, that present day circumstances requires that it be re-examined. For
the last 100 years, but more especially since the 1939-1945 war, intense legislative activity has
taken place in England. Legislation of a dirigent inspiration, very much removed from the liberal
spirit of the Common law, increasingly regulates relations between private persons and
government administration in wholly new sectors of English public and social life. It may very
well still be true to say that the legislation changing in some detail or reorganising the traditional
branches of English law—what is sometimes called lawyers' law can still be interpreted and
applied according to the traditional canons of construction.

5.3) Custom
The third source of English law, in addition to court decisions and legislation, is custom but its
importance is very inferior to that of the first two. English law is not a customary law. The
"general immemorial custom of the realm" upon which the Common law is theoretically based
was never anything more than a simple fiction employed in order to remove any suspicion of
arbitrariness with respect to what the early judges were actually doing. Law in England, before
the elaboration of the Common law, was essentially customary, and the Common law borrowed
many rules from the varied local customs formerly in force, but the process of building the
Common law itself was the fashioning of a judge-made law, based on reason, which replaced the
customary law of the Anglo-Saxon period.
 6. Concept of the Legal Rule
Another structural difference between the laws of the Romano-Germanic family and that of the
Common law, but at another level, lies in a comparison of the formulation of the mould of
thought by which the law is articulated, that is to say the legal rule.
The evident structural differences between Romanist laws and English law do not end with their
respective categories and legal concepts. Even at the basic level of the definition of the legal rule
the continental jurist will not find the sort of rule with which he is familiar. For English law,
evolved through judicial decisions, the legal rule is something different from the doctrinally
systematised or legislatively enunciated regie de droit familiar to the French jurist. It is, most
obviously, framed in less general terms than the continental legal rule and this has the
consequence, as will be seen, that the elementary distinction found in the Romano-Germanic
family between imperative rules and suppletive rules {regies imperatives et regies suppletives) is
not made and that a codification of the Romanist type is more or less inconceivable in England.
In Romano-Germanic family, in which doctrinal writing is held in high esteem, the legal rule is
not considered as merely a rule appropriate to the solution of a concrete case. Through the
systematising efforts of the doctrinal authors, the legal rule has risen to a higher level of
abstraction: it is viewed as a rule of conduct, endowed with a certain generality, and situated
above the specific application which courts or practitioners may make of it in any concrete case.
It is fashionable to view with a certain disdain, and as casuistic, the opposite view which places
the rule of law at the level of concrete cases only. Digests of decided cases, form books and legal
dictionaries are certainly useful working instruments for practitioners and they provide much of
the raw material for jurists in their work. But these compilations do not enjoy the high prestige
associated with legal scholarship. The function of the jurist is to draw from this disorganized
mass first the rules and then the principles which will clarify and purge the subject of impure
elements, and thus provide both the practice and the courts with a guide for the solution of
particular cases in the future.
The very important difference between continental and English law in this connection will be
further emphasized when the respective roles of decided cases and legislation, as sources of law,
are examined. English jurists think of their law as essentially a case law—a droit jurisprudential,
to borrow the French terminology.
The rules of English law are, fundamentally, the rules to be found in the ratio decidendi of the
decisions rendered by the English superior courts. To the extent that he gives opinions not
strictly necessary for the solution of the case before him, the English judge is speaking obiter—
he is giving an opinion which may be questioned and debated again because it does not
constitute a rule of law. The English legal rule is situated at the level of the case for which—and
only for which—it has in act been found and enunciated in order to decide it.
The English legal rule is capable of providing the solution to a dispute immediately but it is not
really understood and its significance cannot be measured unless one knows all the facts of the
case in which it was enunciated. The continental legal rule, linked to moral theology rather than
to procedure, is enunciated by the doctrine or the legislators and designed to direct the conduct of
citizens in a range of cases without any reference necessarily to a particular dispute.
6.1. “Open” and “closed” systems
The preceding remarks are fundamental to an understanding of English law and, especially, the
method of English legal reasoning. The laws of the Romano-Germanic family are coherent but,
one may say, "closed" systems in which any kind of question can, and must at least in theory, be
resolved by an "interpretation" of an existing rule of law. On the other hand English law is an
"open" system: it has a method that can assure the resolution of any kind of question that may
arise, not substantive principles which must, in all circumstances, be applied. The technique of
Enghsh law is not one of interpreting legal rules; it consists, beginning with those legal rules
already enunciated, of discovering the legal rule— perhaps a new legal rule—that must be
applied in the instant case.
6.2 "Inflation" of law
The English concept of the legal rule leads, in the second place, to what might be called an
"inflation" of the law. In the Romano-Germanic concept, the wish to reduce law to a number of
principles, because it is thought that doctrine or legislation cannot enter into a detailed
appreciation of facts, has perhaps resulted in some areas in leaving too much scope to judicial
discretion. French
Law thus seems to an English legal scholar to be made up of only a framework within which it is
often easy for the courts to change the contents of rules in a way hardly propitious for the
security of legal relations. English law gives exactly the contrary impression to a continental
jurist; he finds it over-burdened with legal definitions and detailed solutions which, he would
think, are better left to the discretion of the judge in each individual case rather than chaining
him to their observance through the play of the rule of precedent.

6.3 'Imperative" law and "suppletive" rules

The English concept of the legal rule excludes, in the third place, the elementary distinction
made in Romanist laws between "imperative" and "suppletive" legal rules {lois imperatives, lois
suppletives), expressions containing ideas which are, really, untranslatable into English. When
the difference between the legal rule and the regie de droit is understood, it is easy to see why the
concept of a "suppletive" legal rule is incomprehensible to an English jurist.

A "suppletive" legal rule is only conceivable if one takes up a doctrinal or legislative perspective
in which one envisages a series of typical cases in which a rule of law is to apply, unless the
parties have otherwise agreed or the law itself otherwise provides. The Enghsh judge, of course,
does not have to concern himself with even the possibility of typical cases; his function is to
decide a concrete case by taking certain precedents into consideration.

7. Categories and concepts

Beyond the ever-changing rules there is framework of the law which is relatively stable. The
essential for a law student is to learn a vocabulary and to become familiar with certain constant
concepts which will equip him to study any question, even though the rules he has learned will
have very probably changed. The legislators may modify or abolish any particular rule of present
law, but they can hardly change the language used or alter the traditional structures within which
our legal reasoning takes place.
It is, precisely, in all these respects that English law is so very different from the French and
other laws of the Romano-Germanic family. English legal structure is not the same as that of
French law and it poses the greatest difficulty for a continental jurist since it is, in fact, totally
different to anything with which he is familiar.
There is for example no principal division of law into "public" and "private" law, no divisions
such as "civil law" and "commercial law"—all those distinctions so natural to the mind of a
French civilian; in their place, however, there are other divisions such as, first and foremost, the
distinction between Common law and Equity. At a less abstract level, that of concepts, there is a
similar disorientation for the French civilian: he discovers no concept of paternal authority
(puissance paternelle), acknowledgment of natural children {reconnaissance des enfants
naturels), usufruct (usufruit), moral persons (personne morale), dol or force majeure; instead,
there are new concepts such as trust, bailment, estoppel, consideration and trespass which mean
nothing to the French mind.
The basic works used by an English lawyer have titles like Contract, Torts, Real Property,
Personal Property, Trusts, Evidence, Companies, Sale of Goods, Bankruptcy, Master and
Servant, Bailment, Quasi-contract, Local Government, Conflict of Laws, Pleading and Practice
and so on.
7.1) Dual Structure of English law
This is the reason for the dual structure of English law up to the present time. Alongside the
Common law rules, the work of the royal courts of Westminster or, as they are also called, the
"Common law courts," it also has rules of Equity or "equitable remedies" which complement and
correct the Common law. Until 1875 the characteristic of Equity was its exclusive application by
a special court, the Court of Chancery.
Equity is a series of remedies evolved mainly in the fifteenth and sixteenth centuries and applied
by the court of the chancellor in order to complete, and occasionally correct, the Common law
which had become insufficient and defective.
Private persons unable to obtain justice from the royal courts or shocked by the solution given,
addressed the king asking him to intervene as an act of royal grace "to satisfy conscience and as
a work of brotherly love." In such cases the appeal normally passed through the chancellor; as a
member of the royal household and the king's confessor, he had the responsibility of guiding his
conscience and would, if he thought it appropriate, transmit the request to him for judgment in
his council. This recourse to the "prerogative," perfectly justifiable and unopposed so long as it
remained exceptional, could not fail to give rise to a conflict when it became institutionalised and
developed into a system of legal rules set up in opposition to the Common law.
Common law considered the trial as a kind of combat in which the judge only plays the role of
umpire. Each party had to produce its own proof but neither had the means of obliging the other
to produce a document in his possession. The court of Chancery, in such case, could also
intervene by a "discovery order" to enjoin the party to produce the document. In all these cases,
it cannot be said that Common law, strictly speaking, was violated. Its principles were accepted
(Equity follows the law), but an equitable intervention took place in a number of instances—
resulting finally in a number of complementary rules called rules of Equity —so that the legal
system applied by the courts was perfected in the interests of morality.

6. Role of the universities and legal scholarship

At this juncture, an objection might be made: did not the English universities created in the
thirteenth century teach Roman and Canon law like their continental counterparts? It was only in
1758 that a course in the law of England was given for the first time at Oxford: and it was even
later (1800) that a similar course was given for the first time at Cambridge.
These, then, are the facts, but there is a fundamental difference which must be taken into
consideration while the continental practising jurists received their training in universities, this
was not the case in England. Because of the law's almost total domination by procedure, a
complete divorce took place between law as applied by the courts and that taught in the
universities. English procedure, therefore, was not only an obstacle to Roman law influence; its
complexity discouraged students from attending universities to learn principles that would be of
no use to them in legal practice. It has never been the tradition for English lawyers to be
educated in universities; even today when a university degree is mandatory in order to become a
barrister or a solicitor, the degree need not be in law.
Traditionally, these persons were educated in legal practice in which no mention was ever made
of Roman law and in which attention was constantly focused on matters of procedure and
evidence upon which the success and indeed even the receivability of the action depended. In
these conditions, therefore, it is quite understandable that English law was constructed along
procedural lines and on the basis of the different forms of actions admitted before the royal
courts.
English law, however, was not a law of the universities, or a law of principles; it is a law shaped
by proceduralists and practitioners. The legally trained person of rank in England is the judge
who has been elevated to the bench from the profession of barrister, not the university professor.
Few practitioners, in former times, would have had university training in law; none of the
leading judges of the nineteenth century had a university degree. Legal education was gained in
the practice, by listening to judges and by participating in the daily work of a law office. To have
studied a body of principles would not have been very useful;

7. Importance of Adjective Law

Continental jurists have traditionally concentrated on substantive law {regies de fond,
materielles Recht). They have neglected matters of procedure as well as what relates to evidence
or the enforcement of judicial decisions—those rules in the Anglo-American tradition known
collectively as adjective or adjectival law (formelles Recht). This hierarchy established between
substantive law and procedure is of the greatest antiquity: in Rome a careful distinction was
made between the prudents who alone were jurisconsults worthy of the name and the advocates
(oratores) whose dignity and rank were unquestionably lower.
The university formation of continental jurists has re-enforced this feeling; for centuries law has
appeared to be linked to moral theology and the jurist, who had studied Roman law as a model of
reason, was always distinguished from the practitioner who knew procedural forms and local
rules but who lacked a general legal culture; those with no university degree, and therefore
deemed to be unfamiliar with "the principles," were always somewhat looked down upon.
English law, however, was not a law of the universities, or a law of principles; it is a law shaped
by proceduralists and practitioners. The legally trained person of rank in England is the judge
who has been elevated to the bench from the profession of barrister, not the university professor.
Few practitioners, in former times, would have had university training in law; none of the
leading judges of the nineteenth century had a university degree. Legal education was gained in
the practice, by listening to judges and by participating in the daily work of a law office.

It was more essential to determine the form of action that would successfully bring a matter
before the royal courts and to avoid the procedural pit-falls existing at every turning in such a
formalist system. If the trial were completed, the jury was relied upon to render a reasonable
verdict on the merits of the case. The first difficulty however was to complete the trial, and for
that it was necessary to pay especial attention to all possible procedural obstacles. Moreover this
procedure took place before a jury and therefore strict rules of evidence had to be drawn up if
reasonable verdicts were to be given by jurors who were mostly uneducated and easily
impressionable.

8. Attitude of English jurists

The English jurist, as a successor to generations of practitioners, is suspicious of what he easily
considers to be empty statements: what, in fact, is it worth to affirm the existence of a right or a
principle if, in practice, there is no means of putting it into effect? For centuries the attention of
English jurists was focused upon matters of procedure and only slowly did it shift to the
principles of substantive law.

The European continental jurist sees law as a series of principles, or perhaps the very principle,
of social order, and he attempts to define and improve it through the formulation of such
principles. He enunciates the principle of political liberty, that of social rights, that of respect for
ownership and contractual freedom, and he leaves to practitioners the work of putting such
principles into operation—or, it may be, leaving them without any sanction.

Most disputes in England are handled by the lower courts, various administrative boards,
tribunals, commissions and private arbitrators. The control exercised by the "superior courts"
over these bodies may in many instances deal with the manner in which they have interpreted
and applied the law, but very often, especially in the case of the administrative boards and
commissions, rental boards and arbitration, it will only review the manner in which the
procedures were carried out. English law does not always attempt to verify whether, on the
merits, the decision of an administrative authority is justified or not; it is more essential to ensure
that such authority hands down its decision only after having observed a fair procedure during
which it will have heard all the interested parties and at the conclusion of which it will be in
possession of all material facts.

The concepts that the accused must have a fair trial and that decisions can only be rendered upon
completion of an established procedure embodying the rules of natural justice are central to
English law—a law conceived, essentially, in the light of litigation and one more concerned with
the administration of justice, or so it often seems to the continental jurist, than with justice itself.
The two things cannot, quite clearly, be dissociated. The English attitude, however, should be
noted: observe a well-regulated procedure, fair in all respects, and you will surely arrive at a just
solution. The French jurist, on the contrary, thinks that the judge must be told what the just
solution is and if he knows it already then he must not be prevented from achieving it by an
overly detailed
regulation of procedure and evidence.

9. Justice and administration

A final point to note is the importance attached in England to the enforcement of judicial
decisions. In this respect two matters should be emphasized. In the first place, it is considered
quite natural in England for the courts to issue orders to the various branches of the government
administration in order that the law be respected. English courts do not limit themselves to
quashing an illegal administrative act; they will direct by a mandamus order that the legally
required administrative step be taken; they will also order the police, or any person, through the
writ of habeas corpus, to put at liberty a person who has been illegally detained or confined. The
existence of such procedures is characteristic of English law but, on the other hand, it is very
little concerned with abstract legal declarations which enunciate principles of justice without
giving any heed to their practical enforcement.
The rigour and the effectiveness of English enforcement procedures are impressive. That a
private person, and much less an administrative authority, ignore the law is not admitted: if he
did he would be obliged to reflect in prison upon the inconvenience of ignoring court orders. The
concept of contempt of court is fundamental and expresses the very idea of English law.
It would be inconceivable to an Englishman, in the second place, that the authority of the court
be flouted as it sometimes is in Romano-Germanic countries where, for example, or where again
an administrative authority can, without incurring any real responsibility, even refuse to make
use of public authority to proceed to the enforcement of judgments. The English lawyer has
difficulty in understanding why in certain countries, such as Spain and parts of Latin America, it
may even be necessary to institute further judicial proceedings to obtain the enforcement of a
final judgment.. The English lawyer has difficulty in understanding why in certain countries,
such as Spain and parts of Latin America, it may even be necessary to institute further judicial
proceedings to obtain the enforcement of a final judgment.

10. The Nature of Trial

11.1) Law of Evidence
There is a complex set of rules, called ‘Law of evidence’, which determines what evidence may
be given by witnesses and what questions they may be asked in examination and cross-
examination. There is no counter- part for this in the Civil Law, where evidence is heard by
professional judges and Civil Law who, in a civil suit, should get to hear everything; after all,
they are experienced, even hardened, enough to make a 'free evaluation of the evidence and
separate the grain from the chaff. In a jury trial, by contrast, a "law of evidence' is necessary to
prevent laymen being led up the garden path by hearsay evidence', suggestive leading questions',
and other tricks. It will be obvious that 'adversary procedure' encourages attorneys to go to the
very limits of what is morally and professionally acceptable, perhaps sometimes even to overstep
them, by preparing' their witnesses rather intensively for examination and cross-examination, and
by dressing up as an unalloyed truths what attorneys well knows to be pack of lies. Scruples are
easily allayed by the consideration that the other side can do likewise.
11.2) The role of judge in a trial
The role of the Anglo-American judge may be relatively passive because knowing nothing of the
case at the outset, he must learn about it as it proceeds, but the reason for giving the leading role
to the parties and their lawyers has to do with certain deeply held views about the best way to get
at the truth, or something akin to it, in the course of a court hearing. It is thought best to let the
parties battle it out, each presenting and defending a consciously one-sided view of his own case,
with the judge standing passively by, essentially seeing simply that the rules of the game are
observed, " truth is best discovered by powerful statements on both sides of the question, said a
famous Lord Chancellor, Lord Eldon,. And a statement of Lord Denning positively reeks of the
battlefield: 'In litigation as in war. If one side makes a mistake, the other can take advantage of it.
No holds are barred'. The 'adversary procedure which common lawyers see as the ruling
principle of procedural law manifests itself in this determined if regulated confrontation between
the parties to the lawsuit.
In Germany and neighboring countries in Continental Europe procedural law is rather based on
the idea that it will be easier to get at the truth if the judge is given a stronger role: he should be
entitled, indeed bound, to question, inform, encourage. and advise the parties, lawyers, and
witnesses so as to get a true and complete picture from them, as free as possible from
inconsistency and ambiguity, and to counteract any mistakes due to lack of care or skill on the
part of the suitors or their attorneys. It is true that the German judge cannot of his own motion
call a witness simply because his evidence might cast light on the matter; it is also true that in
normal civil litigation the Verhandlungsmaxime applies, the principle that the judge may take
account only of what has been led in evidence. Even so, writers from the Common Law do not
hesitate to describe the German civil trial, as compared with the Anglo-American trial as
inquisitorial, and the German judge as a paterfamilias-also endowed, to be sure, with some of
the characteristics of a bureaucrat constantly descending to the level of the litigants as an
examiner, patient or hectoring, as counselor and advisor, as insistent promoter of settlements.
Withal he has not entirely lost his character as a civil servant, though of a special type in a
government department.
11.3) How are Judgments Written?
Where judges decide in panels, the question arises as to whether the court speaks with one voice,
or whether there can be individual concurring or dissenting opinions. In general, civil law courts
use the first option, occasionally making an exception for constitutional courts, whereas common
law courts use the second. This is in line with institutional and methodological differences, since
the common law judge tends to have a more independent individual position within the court
organisation, and the civil law judge tends to aim for an objective and impersonal finding of the
law.
Differences in the style of judgments can also be related to the differences in legal reasoning.
Common law judgments give a detailed account of the facts, and the reasoning is inductive,
discursive and pragmatic. Thus, its attractiveness may be that the judgment can inform us ‘what
is really going through a judge’s mind when he [or she] is trying a case’. Because of the role of
precedents, common law judgments may also provide a detailed treatment of previous cases.
Traditionally, no references are made to academic writings, but this is slowly changing in
English courts. With respect to the United States, the decisions of the Supreme Court can be seen
as a special case, since its clerks often provide judges with detailed references not only to
previous cases, but also to the academic literature.
The style of judgments in civil law countries reflects their more deductive mode of reasoning, as
well as the prevalence of a specialised career judiciary. It has been described as more formalistic,
austere and abstract than in common law countries. Policy arguments may be concealed through
such reasoning. There is also less emphasis given to facts, indicating a concept of justice which
is more concerned with general principles than with the specifics of each individual case. With
respect to further details, a distinction needs to be made between German and French judgments,
with some other civil law countries using a mixture between these models.
11.4)Absence of Ministere Public
In England there is no ministere public or procurator's office of the Romano-Germanic type
connected to the courts. The presence of such an officer, representative of the executive power
and intervening in litigation to advise the court on matters of public interest implied therein,
appears to the English to be irreconcilable with the autonomy and dignity of judicial authority.

11. Conclusion
To sum up: on the Continent the days of absolute pre-eminence of statutory law are past;
contrariwise, in the Common Law there is an increasing tendency to use legislation in order to
unify, rationalize, and simplify the law. On the Continent, law is increasingly being developed by
the judges and consequently there is more room for an inductive method and style related to the
actual problems; contrariwise, the Common Law is seeing the need to bring the rules developed
by the judges into a systematic order by means of scholarly analysis and legislative action, so as
to make them easier to understand and master. There are therefore grounds for believing that
although the Common Law and the Civil Law started off from opposite positions, they are
gradually moving closer together even in their legal methods and techniques.