Legal Brief for November, 2012

Common Law

In the Legal Brief for October we looked at statute law as one of the two main sources for laws in our legal system.  In this month's Brief we will look at the other main source, which is known as the common law.

The term "common law" comes from the 12th century in England, when the monarch of the day, Henry II, established legal tribunals to adjudicate on disputes between citizens of the realm.  The tribunals were "common" throughout the country and the judges followed each other's decisions, which created a "common" body of legal principles.  These decisions became known as precedents, or stare decisis, as discussed in the September Legal Brief.

The establishment of these "common" courts was not without controversy in England.  They represented a rival source of power within the society to the previously predominant courts of the Catholic Church, which were known as ecclesiastical courts.   This brought Henry into conflict with the Archbishop of Canterbury, Thomas Becket.  The dispute ended with the murder of Becket at Canterbury Cathedral by four knights, who were allegedly acting on instructions from Henry, although Henry's role in the matter is not entirely clear.

The body of decisions in the common courts accumulated over the years and came to cover all manner of legal disputes - property rights, business interests, matrimonial, wills and estates and criminal cases to name but a few.  The principles of the common law were exported around the world with the development of the British Empire, taking root in the 13 Colonies (which became the United States of America), Canada, South Africa, India, Australia and New Zealand and others.  The legal systems in these countries even to this day depend for much of their legal foundation upon cases decided in England one or two centuries ago.  First year law students in Canada spend as much time reading English legal decisions as they do Canadian cases in courses such as contract law and property law.  And in the U.S., despite the desire of the colonies to overthrow the supposed yoke of British tyranny, they in fact retained significant portions and elements of the English common law after the Revolution, and which remain firmly embedded in the American legal system to this day.

One of the most important features of the common law system is that it is able to evolve and adapt to changing times in society, both economically and culturally.  The adjustment in legal principles is usually incremental, but because there are often no statutory rules for the most part to restrict the decision making power of judges, they have the freedom to occasionally turn the law in new directions.  This is however also not without controversy, as one will sometimes read of complaints from political leaders about judges "making the law" instead of "applying the law."

The main alternative to the common law system is known as the "civil law" system, which has it origins in the sytem of law practiced in the Roman empire.  The basis of the civil law system is that the core principles upon which legal disputes are to be decided are written in a comprehensive code.  Judges then follow and apply the rules of the code in deciding cases, rather than looking to the precedents set by judges in prior cases as found in the common law system.  The common law/civil law dichotomy is present in Canada, with all of the provinces other than Quebec using the common law system, while the Province of Quebec uses the civil law system, which it inherited from its French founders.