The common law system refers to the legal system of a type of country and region based on British common law, of which the British and American law systems are the most representative. The common law system is also known as the common law system, the English law system, the maritime law system and the case law system. The formation and development of the common law system is the formation and development of the case law tradition.
Section 1: The Unique Method of British Law
There is a saying in the Western proverb that “all roads lead to Rome”. Apart from China, Rome was once the center of the ancient world. Roman law not only prevailed in the ancient world for more than a thousand years, but also became the basis of modern civil law systems (including the modern Chinese legal system). However, English law in the Middle Ages embarked on a development path independent of continental Europe. With the rise of the United Kingdom, British common law has become unique in the entire world's legal history and has developed to this day with its tenacious traditional power, forming a worldwide common law system with case law as the main legal form.
1. The formation and development of British law
The indigenous people of Britain are Celts. In the 1st century BC, the Roman Empire conquered this area and ruled for four centuries. However, only a few coastal cities were controlled by Rome. The Celts in other areas still retained their own clan system. ①In the 5th and 6th centuries, Germanic peoples migrated to the territory of the Roman Empire. The Anglo-Saxons living near the Elbe River in North Germany and the Jutes living near the Rhine River successively invaded Britain and established multiple tribal states. The Anglo-Saxons brought with them their own tribal Germanic customary laws. Even if there are some statutory laws, they are all records of customary law. Generally speaking, laws are scattered and vary from place to place. By the 9th century AD, the Kingdom of Wessex recruited several tribal nations by force and formed a unified Kingdom of England on the British Isles, but the decentralized state of the law remained unchanged. In 1066, Duke William of Normandy, the great French feudal lord, led the Normans to conquer England. The Norman invasion completed the feudalization process in England. The British legal system was very confusing at the time. The king established a royal court by decree and sent judges to various places to conduct trials. When handling cases, circuit judges mainly relied on the common law of the Anglo-Saxons in various places, in addition to the king's edicts and decrees. After the circuit trial, the judges regularly discuss and debate some cases and legal viewpoints centered in Westminster, where the central authority is located, and integrate and apply the customs and laws based on each other in future circuit trials. Circuit judges interpret and apply local customary laws according to the king's will when hearing cases, gradually forming a common customary law throughout the country, called common law. (2) This kind of customary law is announced by the judge through a judgment, exists in the judgment, and is expressed in the form of precedents. In the late 12th century, Henry II carried out judicial reforms and stipulated that some of the most serious criminal cases should be handled by the royal courts: knights, citizens and free peasants were allowed to file lawsuits directly to the royal courts without going through the lord's court; the original circuit trial was established as the judicial system ; Establish a jury system, cancel duels, divine judgment, etc. The reforms of Henry II established the status of common law. The characteristics of the common law include: (1) The basic content of the common law is traditional customary rules, which are gradually enriched and developed through long-term practice. (2) The rules of common law are recognized by ordinary courts and are the basis for ordinary courts to decide cases. (3) Common law is gradually developed by ordinary courts through judicial activities. Ordinary courts play an important and positive role in the elimination, abolition and development of common law rules in judicial activities. (4) The rules of common law are reflected through precedents. When making judgments, judges organize and select the rules of common law, and then express them accurately. (1) Since the 14th century, the British economy has developed rapidly. At this time, the basic principles of the common law have been finalized and systematized, thus showing conservatism. Many cases were dismissed or unfairly decided by ordinary courts. In order to provide legal remedies to these parties, the King authorized the Chief Justice to hear cases as the "Guardian of the King's Conscience". Judges adjudicate cases based on the principles of "fairness, justice" or "justice" and gradually form a legal system called justice. Equity mainly uses some principles of Roman law, canon law and commercial law to make up for the shortcomings of common law, but its expression is also precedent. England established a parliament in the 13th century.
After the 15th and 16th centuries, with the gradual improvement of the status of Congress, the legislative activities of Congress became increasingly frequent, and the number of laws enacted continued to increase. In addition, canon law also influenced the development of English law through the trial activities of church courts and the penetration of canon law principles into common law. Since the 17th century, British politics had become increasingly corrupt, and the Catholic Church was used to suppress the people, thus inspiring the bourgeois revolution. From 1640 to 1688, the bourgeoisie used the Congress as its position to engage in repeated fierce struggles with the king. After civil war, the execution of Charles I (1625-1649), Cromwell's dictatorship (1653-1658), the Restoration and the Compromise of 1688, England established a constitutional monarchy. The capitalist legal system gradually took shape. But the legal form is still the common law of fear, equity and statutory law in the feudal period, while the legal content gradually transitions to a capitalist nature through judicial interpretation or new legislation.
From 65438 to the 1960s, Britain began the Industrial Revolution and the capitalist economy developed rapidly. Bentham was a famous British jurist who actively responded to the European codification movement. He published "Treatise of Government" in 1776 and "General Theory of Morals and Legislation" in 1789. He used utilitarian standards to measure the British laws at that time, criticized the ancient, imperfect and conservatism of British laws, advocated the reform of British laws through legislation, and tried his best to create codification. In 1832, the British Parliament enacted the Reform Act, which began to eliminate medieval remnants in various legal fields on a large scale, promoting the further development of the bourgeois legal system. Bentham's influence continues from the 19th century to the present day, leading to the development of parts of English case law. However, the strong vitality of British case law hinders the realization of overall codification of case law. Since the end of 2019, as the state has strengthened its intervention in social and economic life, the number of statutory laws has increased sharply, reducing the status of case law, but case law is still the basis of British law.
2. The reason why English law developed independently from Roman law
From the 1st century to the 5th century, the Roman army conquered and occupied Britain, but local Celtic conflicts and ethnic conflicts limited penetration of Roman law. During the revival of Roman law in continental Europe, the influence of Roman law entered the United Kingdom. The equity and commercial laws that emerged in the United Kingdom in the 16th century absorbed Roman law to varying degrees. However, the influence of Roman law on Britain occurred on the basis of common law and was not enough to change the independent development direction of British law. At that time, Britain did not "accept" Roman law like Western European countries, mainly because there were important differences in the historical background between Britain and Western European countries.
First of all, unlike the countries in the Western European continent that have long been in a state of feudal separatism, Britain has established a centralized monarchy since the Norman Conquest, and the law that is uniformly applied across the country - common law - is almost the same as that of the country. The Royal Court - Jintong Court appeared at the same time. The existence of a self-contained common law made Britain less eager to "accept" Roman law than the countries in continental Western Europe. The judges of the ordinary courts grew up under the influence of the common law unique to England. By the 16th century, although the common law itself tended to be conservative, the judges of these common courts naturally formed a social force. Because of their vested interests and traditional beliefs, they clung stubbornly to the common law tradition. The existing status of common law and the conservative thinking of ordinary court judges made it too late and weak when the wave of Roman law revival tried to cross the English Channel, the natural barrier between Britain and Europe. In the 16th century, the French Roman jurist Hertmann was hired as the legal adviser to the British king and lectured in Britain. He argued with the British jurist Coke for more than 30 years. As a result, common law gained great prestige, but Roman law suffered repeated setbacks in England. (1) Therefore, when the separatist regimes in continental Western Europe successively "accepted" Roman law, Britain could still maintain its own legal tradition.
Secondly, in the 17th century, common law became a powerful weapon in the hands of parliamentary parties. Because ordinary cowardice has developed a certain kind of resilience in the long-term historical development, its cumbersome and formalistic techniques enable it to tenaciously resist the oppression from the royal power. From then on, the British regarded common law as the guarantee of basic freedoms and used it to protect civil rights and fight against the tyranny of arbitrary power. Some principles of common law have become an important part of Britain's unwritten constitution. “The exclusive force of the traditional force of English law became still more powerful when the judges of the ordinary courts gradually tended to oppose the boundaries of Parliament to the King of England.
Third, courts in Western European countries, generally speaking, have jurisdiction over all lawsuits from the outset and are not restricted by writs and litigation forms, so they are more likely to accept Roman law. However, for a long time, the common law courts in England were the courts that dealt with special cases other than those in the local courts. At the same time, each type of case had its own special proceedings, which hindered the "acceptance" of Roman law in England. In the future, after the common law courts have actually developed into courts of general jurisdiction, their mechanical and complex procedures remain a serious obstacle today.
Section 2 British Common Law Tradition
1. Traditional Characteristics of British Common Law
British common law was created through judicial precedents by judges of the British common courts in the Middle Ages. and developed laws. The common law tradition is manifested in the principle of stare decisis, the dominance of case law, the method of case law and the centralism of litigation relief.
Common law is the law created and developed by judges through judicial precedents, which means that common law is related to judicial precedents as precedents. ——Precedent in a general sense refers to a previous example that can serve as an illustration or rule for a subsequent event or case, or a previous example that can be used to support or prove a similar situation or behavior. The research results of human behavior show that all ethnic groups have the tendency to respect and even be obsessed with their own traditions. Therefore, it is natural that people in a given society tend to refer to previous solutions when dealing with problems. At the same time, all ethnic groups have a natural tendency to respect and worship authority. So, it's only natural that ordinary people tend to follow the approach of those with higher authority when dealing with similar situations. These two behavioral tendencies are judicially similar. Judges refer to previous judicial decisions when handling cases, and lower courts often follow judicial decisions from higher courts. It can be said that judicial trials in various countries and ethnic groups are affected by judicial precedents to varying degrees.
British judicial precedents are a directly binding law, that is to say, judges must not only refer to and follow judicial precedents, but also must follow them; precedents are not only models for demonstration, but also for Later cases serve as binding precedents. This is what is known in the UK as the "stark precedent" rule. ②
In the UK, (1) the judgment of the House of Lords is a binding precedent that all other courts must abide by and is also binding on the House of Lords itself. (2) Judgments of the Court of Appeal are binding precedents for all courts except the House of Lords, including itself; (3) Judgments of the High Court are binding on county courts and are usually adopted by different branches of the High Court Institutions recognize their intelligence and integrity, which is why they should take their judgments very seriously. "② British legal people - generally opposed to any attempt at codification. They either believe that the time is not yet ripe, or that the codification process is too rigid, which will inevitably hinder the spirit and experience of English common law from growing together. Today, statutory law is in The proportion of the UK has been greatly increased, and its actual role has also been greatly improved. However, these changes cannot shake the fundamental status of case law. The innate love for case law still lies in people's profound legal concepts and the profound legal culture of the UK. The case law method is a natural evolution of the rule of stare decisis, whereby judges draw up legal principles from cases involving the same facts and apply them as skillfully as possible to subsequent cases. “English law is written case law. , the only difference between it and the code law is the writing method. "③The rule of "following precedent" has led to a series of techniques for applying case law." British jurists should distinguish between the necessary basis for judgment, that is, the 'reasons for decision' and the 'incidental opinion', that is, what the judge says is not true for the judgment. Absolutely necessary. The "reasons for a decision" constitute a norm of precedent and should be followed in the future. On the other hand, the content of "obiter opinions" does not have such authority, and its value is only persuasive..." (4) Such "decisive reasons" and "incidental opinions" are intertwined with the specific facts of the case. Together, they have formed the unique legal thinking mode of British judges and jurists. They are accustomed to handling cases through the analysis and comparison of specific facts, and are accustomed to summarizing and abstracting from specific facts and specific laws through inductive reasoning. Yin once said that British law "seeps out from the gaps of procedures." It can be said that British common law was created as a set of methods to effectively resolve various disputes. In the UK, substantive law is pursued. The rights are always seen from the existence of judicial remedies, and the priority of procedure is respected.
Any trial result obtained in accordance with clear and fair procedures must be regarded as a fair conclusion. In medieval England, ordinary courts heard cases based on the king's writs and decided on the methods of litigation and judicial remedies. Without judicial remedies, there are no rights. In order to supplement the shortcomings of ordinary courts, courts of equity came into being and granted judicial relief based on the specific circumstances of the case. However, those who approach the Court of Chancery when there is no judicial remedy in the ordinary courts remain without rights. Although this method of litigation was abolished in the 19th century, due to this historical tradition, until now, jurists in the common law system still view substantive law rights from the perspective of judicial relief. "The principle of priority of procedure over rights has always been one of the foundations of British common law.
2. The vitality of British common law
The common law has a history. The common law has been around since 11 Over the past century, the legal norms accumulated by British court cases over the past hundreds of years have been repeatedly applied by precedents, and constant reasoning and self-evidence have given the common law a certain transcendence, which has been recognized by Western scholars. Hailed as "the natural expression of perfect human reason" "In the British view, the concept of law as reason leads to a certain supranational or, more accurately, non-national consciousness of conformity to traditional law. "(1) The concept of distinguishing between law and law in the common law gives the common law itself a natural charm similar to "natural law". The common law is open. On the one hand, an inherent principle of the common law is the so-called Implemented in "colonial areas". With the expansion of British imperial power around the world, common law was introduced into many places in America, Asia, Africa and Australia, thus forming a worldwide common law system. Fictionalized as fixed and rooted in medieval English practice, it was not static, in fact it evolved according to the policy needs and values ??of English society. “The common law was also uniform. The term common law is often used without a label. One does not want to think of common law as a national legal system; it is the "common heritage of the English-speaking world." As a common heritage, it is claimed that it played the role of Roman law in continental Europe until the Codex era. “The common law was originally a unified common law that England tried to promote throughout the United Kingdom in the Middle Ages in order to unify British judicial power. The development of the common law and the formation of the common law system made the common law develop into a unified law in all English-speaking countries. In the common law system, the precedents of the English courts are considered to be the truest common law and they are often applied first. In addition, “Courts in different countries and regions in the common law system often refer to each other and cite case law in other countries in the common law system, and English common law is the factor that connects the legal systems of these different countries.” “The unity of common law is reflected in the common law The traditional characteristics of the law, that is, the characteristics of the applicable fields of the common law, include the rule of precedent, the method of case law and litigation centralism.
The unity of the common law is also reflected in the basic principles of the common law. * * * Belongs to the applicable areas of common law, including: (1) anything that is not expressly stipulated in the law is allowed; (2) anyone whose interests are harmed by the judgment should receive a fair trial; (3) in civil law, The injured person should receive compensation. The legal relations regulated by common law involve many aspects of public law and private law. The above basic principles of common law ensure that the specific system of common law becomes consistent in various fields of common law application.
The existence of the Commonwealth plays a very important role in strengthening the ties between common law countries and maintaining the unity of common law. The vast majority of the more than 30 member states of the Commonwealth belong to the common law system. Since the establishment of the Commonwealth in 1931, appeals to the British Privy Council have been abolished in trial proceedings, but some countries still retain this practice although the judgments of the British House of Lords and the High Court of Justice have been decided in Commonwealth member states. No longer as binding in the courts as it once was, but still persuasive
An English case report, or case report, is a report written by a third party about a case heard in court, which is binding on the case. There is a relationship between the forces. The development of British jurisprudence has gone through the era of medieval almanacs, the era of private reporters from the 16th to the 19th century, and the era of real law since the late 19th century. In 1863, the United Kingdom established a professional body composed of 22 people. The Commission reformed the Casebook and established a "Casebook Compilation Committee" with legal personality composed of representatives from the Bar Association, the Bar Council and the Law School.
Starting from 1865, under the name "No case collection of any court shall be published without the approval of the British Case Collection Committee", the chaotic situation of the publication and distribution of case collections was changed. By the beginning of the 20th century, the number of cases collected had reached 65,438+0,800 volumes, and was increasing at a rate of 65,438+00 volumes every year. Case collections are those decisions that serve as new precedents. In principle, 75% of the judgments of the House of Lords, 25% of the judgments of the Court of Appeal and 65,438+00% of the judgments of the High Court must be published. In effect, unpublished court decisions are no longer bound by precedent. Section 3 The United States’ inheritance of British law
At the beginning of the 17th century, the United States began its colonial period. At that time, there were few connections between the colonies and British control over them was loose. At that time, the colonial residents urgently needed law in real life, and given the complexity and conservatism of English common law, there were many difficulties in the inheritance of common law. Thus, most of the colonial laws were formulated with the minimum necessary rules, and British law was only a secondary source of law to fill in its deficiencies. After the 18th century, with the strengthening of British colonial rule and the increase in the number of people in the colonies who were familiar with British law, the influence of British law in the North American colonies increased significantly. In the mid-18th century, the independence movement broke out in the United States, and Americans used British common law as a weapon to fight. The Declaration of Rights and the Letter of Complaint of 1774 was a document that publicly asserted the rights of Americans under common law. With the independence of the United States, American law became the law of an independent nation. After many twists and turns, the common law tradition was finally established in the 19th century.
Until the mid-19th century, the United States had two distinct tendencies, English common law and codification. In the mid-19th century, the heated debate over codification in New York State focused on the conflict between English law and civil law traditions. The New York State Constitution at the time required the drafting of a "written and systematic code of law." As a representative of the codification school, the lawyers firmly advocate codification, believing that codes can make the law fixed, certain and predictable, and oppose judges becoming legislators like in the UK. Carter, president of the American Bar Association, led the fight against codification. He believed that rules regulating people's behavior come from customs, and precedents only show the public's recognition of social customs, so judges only discover laws rather than legislation. On the contrary, codification hinders the development of the law. The struggle between these two tendencies ended with the acquisition of a tradition of general fear - the political party, which was established in the United States as a whole (with the exception of Louisiana).
Although both the United Kingdom and the United States use case law as the main source of law, the United States is not as dominant in case law as the United Kingdom. The UK is the birthplace of common law case law. It has long adhered to the tradition of case law, and the dominance of case law has never been strongly impacted by statutory law. Although the United States is based on case law, it showed a tendency to pay more attention to statutory law than the United Kingdom in the early days of its founding. In its later development, European codes or regulations tended to replace case law. Since the end of 2019, the United States has far more statutory laws than the United Kingdom, and its role has become increasingly important. Although the United States has completely inherited the common law tradition of the United Kingdom, its attitude towards case law is not exactly the same as that of the United Kingdom. In the United States, although lower courts in a jurisdiction believe that they should be bound by the precedents of higher courts or the Supreme Court, the state supreme courts and the federal supreme court have adopted a more flexible attitude towards earlier erroneous or outdated precedents than the British courts, holding that Judges can depart from or overturn precedent. Even the intermediate appeals courts in the United States mostly exercise such power. They boldly overturn inappropriate precedents, mainly on the grounds of insufficient reasons, misunderstanding of the court's previous judgments, and inconsistency with newly established social ethics. At the same time, judges at all levels of court generally have broad powers to disregard binding precedents.
As for the application of the principle of stare decisis, the United Kingdom generally believes that the reasons for judgment can be formed by clearly stating the principles under formal legal procedures, or by distinguishing the judge’s incidental opinions in the judgment opinions. The reasons for judgment should be in a relatively narrow sense. The United States believes that the reasons for judgment must be the substantive reasons of the previous judgment, and does not agree with the proposition that the reasons for judgment can only exist in a relatively narrow form. When British judges consider judgments or interpret statutory provisions, they are accustomed to integrating many precedents related to the case to form comprehensive reasons for the judgment; American judges sometimes directly consider their judgments based on substantive reasons that can only be established after citing several authoritative cases. . There are rarely dissenting opinions in the judgments of British courts, while dissenting opinions or minority opinions are more often expressed in judgments of American courts.
In the UK, there is a unified and strict court system, and the lower courts have the obligation to respect the higher courts. This provides good conditions for "following precedent". "Following precedent" is the British case law to maintain stability and unity. , the most important factor for its survival. Therefore, the United Kingdom naturally grants the House of Lords and the Court of Appeal, which enjoy the highest judicial authority, the exception of "following precedent" to ensure the stable operation of British case law.
In the United States, however, federal and state courts have their own systems. The federal court system includes the federal Supreme Court, federal courts of appeals, and federal district courts. State court systems are complex and can be broadly divided into three categories: state supreme courts, state courts of appeals, and state district courts. The dual nature of the court system makes U.S. case law extremely complex. Since there is no strict unified hierarchy among courts in different systems, strict "following precedent" rules cannot be enforced, and courts at all levels may overturn or set aside precedents.
According to this situation, without strict regulations, American case law will lose its survival conditions. But in fact, American judges basically follow precedent. The United States very wisely drew on the advantages of codification and used a written constitution to limit the exceptions to "following precedent." In other words, whether it is a federal court judge or a state court judge, any decision that deviates from "precedent" must be based on the Constitution. If it violates the Constitution, it will be struck down by the Federal Supreme Court. In addition, the Federal Supreme Court also has the power to interpret the Constitution. The Constitution establishes the authority of the Federal Supreme Court to supervise the "following of precedent" by lower courts, making case law in the United States have different characteristics from that in the United Kingdom. In comparison, British case law is stable but prone to rigidity; American case law is not as stable as the British, but quite flexible and adaptable to changes in the criminal society.