THE HISTORICAL DEVELOPMENT OF COMMON LAW AND CONTINENTAL LAW
The historic roots of Common Law date back to the English kings’ courts and judges making an effort to create a national legal system by centralizing the administration of justice in order to enhance the power of the royalty. The judgments brought upon by the royal courts were enforced by the executive powers of royal officials. The applied law was said to be rather “common”, whereas customs used within the entire kingdom were the basis of the national legal system. Although there were royal statutes from the very beginning of the development of the common law system, the primary legal sources were nevertheless not of a legislative nature. Through the interaction of lawyers and judges based on ongoing case argumentation and adjudication, common law became an expression of public policy which gave grounds to the norms and principles to be followed and the prohibitions to be refrained from. Such norms were all reflected in authorative decisions, called “precedents”, which were binding from the earliest developing stages on. However, rather than a slavish respect for the individual decisions, the key to such legal system was to infer a certain legal conclusion and principle from a line of facts constituting a certain case, which were then repeated from generation to generation, making the case law the basis of common law.[1]
An important branch enhancing common law was the increasing commercial activity, which gave rise to lawyers familiar with merchants’ customs to litigate disputes arising from the ever-spreading and broadening customary rules applied among commercial traders. Thereby, although in the 19th and 20th century such rules were codified later on in the English Sales of Goods Act in 1893 and the American Uniform Commercial Code, and albeit that these rules were modernized throughout the passage of time, the core legal basis basically serves as a restatement of the common law principles.
Albeit common law rested on the customs of commoners consisting of the English people, royal officials were the ones enforcing these rules. The royals wished to enhance their power and maximize their prerogatives as much as possible. History shows that the people felt the need for declarations of liberty, such as the Magna Charta of 1215, which showed a counterbalance to royal power.
Royal sovereignty doctrines were yet ever-emerging, leading to ever-growing tension and conflict between the King and the Parliament. In the 17th century, great Chief Justice Coke states in 1611 that the King “hath no prerogative but that which the law of the land allows him.”[2]
Despite the royal officials early law enforcement tradition, such heritage was turned when the common law judges mainly positioned themselves on the Parliamentary side. Thereby, the victory of the English civil war brought upon common law embodying fundamental civil and human rights as opposed to royal prerogatives.
As such, when the English colonized North America, the Americans used common law as an ideological weapon for their struggle for independence. Much of the United States Constitution’s rights and privileges can be traced back to the Magna Charta of 1215. Such examples consist in the general requirement that no one may be deprived of life, liberty or property without due process of law. “The content and method of common law were absorbed into American socio culture and have never been displaced.”[3]
Continental Law on the other hand, originates from Roman law, which was codified as the Corpus Iuris Civilis (“The Body of Civil Law”)[4] between 529 and 534 by the great Roman Emperor, Justinian I. This civil law codification is also the reason why continental law is oftentimes referred to simply as “civil law”, however for the sake of keeping this definition as a distinction between the types of laws, it will hereby be continued to refer to the legal system governing the majority of European continent as to “continental law” and the legal system governing the majority of Anglo-Saxon countries as “common law”.
The systematic and authorative approach of codifying civil law swept through the European continent and many other countries during the 19th and 20th century. Only to name a few: in 1804, the French Code Civil; in 1811, the Austrian Bürgerliches Gesetzbuch; in 1896, the German Bürgerliches Gesetzbuch; in 1896, the Japanese Minpo; in 1907, the Swiss Zivilgesetzbuch; in 1942, the Italian Codice Civile[5]; in 1959, the Hungarian Polgári Törvénykönyv were adopted.
Although the codification itself was a general and well-founded basis for the proper functioning of society at that point in time in history, the codification process itself was by no means homogenous and different variations of the codified law can be found. However, the codification itself is what sets continental law apart from common law, whereas continental law rests on the basis of largely classified and structured bodies of law containing a vaste number of generally applicable rules and principles, lacking the exact details, whereas the facts are those which fill out the details, giving the practicioners of law thereby the main task of interpreting and applying the law as stated in the codes and statutes to the actual facts of the case. Thus, in continental law, the mission is to „fill in the gaps”.
Common law on the other hand, uses a very different approach in comparison to the continental legal system. Common law evolved in the 11th century in England and then was later adopted in the United States of America, Canada, Australia, New Zealand and other countries of the British Commonwealth. This legal system does not rest on codified laws and regulations created by legislation, rather it is based mainly on case law. Such case law is referred to as precedents and the principle called „stare decisis” establishes that subsequent cases may not be incoherent with or contrary to previous case law. Therfore, the cases which may very well never have been legislated are binding on courts and practitioners of the law, in general. However, this does not mean that there are no rules or bodies of law in the form of statutes in common law. In the United States of America, there are binding statues as well on both federal and state level, however the case law prevails as opposed to continental law where the groundbase of the rules is found in statutory law. Thereby, it is true when it is said that continental law and common law represent „two different paths leading to the same goal”.[6]
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[1] “Fundamentals of American Law”, New York University of Law, Graham Hughes (1996), pages 9-14.
[2] “Fundamentals of American Law”, New York University of Law, Graham Hughes (1996), page 11.
[3] “Fundamentals of American Law”, New York University of Law, Graham Hughes (1996), page 11.
[4] https://en.wikipedia.org/wiki/Corpus_Juris_Civilis
[5] “Corporate Governance – Principles and Issues”, Donald Nordberg, (2011) pages 8-11.
[6] “Civil Law and Common Law: Two Different Paths Leading to the Same Goal”, Dr. sc. Časlav Pejović, Associate Professor of Private International Law, Kyushu University, Japan, (2000), pages 8-11.