Common Law

The notion of common law is well-known in the world and is usually explained as the law developed by the judges of England. It is therefore often defined as case law, with its attendant notions of precedent, stare decisis, and ratio decidendi, and is often contrasted with the written or codified law found in many jurisdictions described as civilian in character. This common law of England has now become worldwide in importance, a residue of the English empire and the success of many instances of English settlement. This English concept of common law is, however, only one instance of a much wider phenomenon of common laws, of still greater importance in the world. The most widely known example of another common law is that of the ius commune, originating in medieval Italy and Germany on Roman law foundations and also spreading through much of the world. Beyond these two traditions of law which are expressly designated as common, it has also been the case that many other laws have functioned as have the common law and the ius commune, either in their European place of origin, in the course of transferral abroad, and in some cases both. This was the case in French, Spanish, Dutch, and German law, as we now know them, each of which maintained a common law and did not simply exist in national form. There was a droit commun, a derecho commún, a gemeine Recht. The Dutch variant became known as Roman-Dutch law outside of Europe. So the notion of common law is one which transcends particular forms of law and has operated in many legal contexts. What are its essential characteristics? It was necessary in the European context to deal with large movements of population and the new arrivals in many places had notions of retaining the law they had known. The English moved into Wales and Ireland, the Dutch and Germans moved east, the Castilians moved into previously Islamic lands. They all saw their law as moving with them; the territoriality of law had yet to be announced in the late seventeenth century by Huber in the Netherlands. This meant that in all cases it became necessary to distinguish the law of the recent arrivals, seen by them as common, from the local or particular laws they encountered. Law thus became known as common, not because it was of uniform application in a territory, but in order to distinguish it from law that was clearly local in character. Both types of law coexisted and it is not clear where the expression “common law” originated. In all cases, however, it coexisted with its ius particulare, local customs, or even local legislation. It quickly became omnipresent as a concept in Europe. The great legal task was not one that is known today as the conflict of laws, since there were no rules of allocation of cases to territorially-supreme powers. It was rather the case that the application of the common law or the local law was a matter of interpretation. “Odious” statutes were therefore restrictively interpreted as local laws, and in the world of the English common law all statutes were seen as odious in some manner. They were exceptions to the generality of the judge-made common law. The notion of a common law was important not only within Europe but also within the empires which the westernmost European powers constructed. Its essential character became even more evident. The European authorities were much involved in the process of constructing territorial states, and the principle of territorial application of …