INTRODUCTION TO THE COMMON LAW LEGAL SYSTEM

Prepared by instructor: Migdalia Castillo-Gerding, J.D., LL.M.

I. INTRODUCTION: HISTORICAL PERSPECTIVE

The American and English legal systems are very different from the continental
legal system. The essential (though certainly not the only) difference is this:
Whereas most continental legal systems are characterised by codified statutes,
American and English law is mainly judge-made law.
Briefly this means, that American and English law is case law. It consists of,
above all, specific cases whose decisions are based on series of precedents.
Generally, the cases are cited with the names of the persons involved in the case,
more commonly known as the plaintiff and the defendant, for example
Donoghue v Stevenson (1932). The decisions of actual cases are based on a
series of judicial precedents. The precedents are not arbitrary rulings but
reasoned judgements.
In no other legal system is the development of the law as closely associated with
its historical background as in the American and English legal systems. So it is
not unusual even today for legal actions to be adjudged on the authority of a
precedent dating back to the 16th or 17th century.
American legal systems, and all others that have grown from English roots, are
characterised as common law, in contrast with the systems of continental
Europe that are derived from Roman law and are called civil law systems.
England never absorbed Roman law principles and methodology, but developed
its law from singular, native sources which, with the spread of English social
culture, have become the foundation of the law in most English-speaking
countries, including the United States.
The earliest idea of the common law was advanced by the English kings judges
some 900 years ago in an attempt to create a national legal system and to
consolidate royal power through the centralisation of the administration of
justice. The national, royal courts proved very attractive to litigants because of
their relative freedom from corruption and their ability to enforce judgements on
a national basis through the executive power of royal officials. The law they
applied was said to be common, because it allegedly represented customs
common to the whole kingdom, in contrast with rules applied only locally, or
with the law in ecclesiastical courts that were applying a foreign system. The
common law thus had a unifying, state-building aspect which had both practical
and an ideological appeal.
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Through the interaction of the judges and lawyers, the common law in its early
centuries laid the foundations of the modern Anglo-American law of contracts,
tort (civil wrongs), and criminal law and the law of real property (interest in
land). While there has been later statutory intervention in all theses areas, the
underlying governing principles and style of argument and decision-making are
still those worked out long ago in the emerging years of the common law.
Finally, one other fundamental theme must be noticed in the early evolution of
the common law. While the common law evolved in the royal courts and was
enforced by royal officers, its fundamental justification from the first identified
itself with the idea and the ideal of the traditional and binding customs of the
English people. Doctrines of absolute royal sovereignty, that were a part of
continental European Roman law systems, were rejected by common law theory.
As conflicts between King and Parliament grew sharper in the seventeenth
century, the common law judges became leading advocates of the Parliamentary
position.
Early declarations of the liberty of the subject and of restrictions on royal power
(such as the famous Magna Carta of 1215) came to be seen as part of the
common law tradition. The result was that, in the English civil war in the
seventeenth century between King and Parliament, the common law lawyers for
the most part were on the parliamentary side whose victory strengthened the
view that the common law was an embodiment of fundamental liberties and
human rights.
This ideological aspect had a powerful influence on the American colonies in
their war of independence against England. The Americans invoked their rights
under the common law as against royal prerogatives and saw themselves not as
rebels, but as upholding the true and best traditions of their English heritage.
Rights and privileges that later came to be embodied in the United States
Constitution, such as the general requirement that no one may be deprived of
life, liberty, or property without due process of law, can be traced back to the
Magna Carta and the general principles of the common law.

II. THE GROWTH OF LEGISLATION AND REGULATION IN THE U.S.

In the 19th century, the increasing complexity of commercial and social life
created a growing need for intervention and regulation by government, both at
the state and federal levels. This phenomenon led to a massive increase in
legislative activity, a tendency that intensified greatly in the twentieth century
and continues today.

Modern regulation would be impossible to effect and implement with the old,
pure common law method of slowly building rules and principles through
authoritative judicial decisions in individual cases. The legislative body
(Congress) must generally empower continuously-operating government entities
such as the Environmental Protection Agency or the Food and Drug
Administration, to draft more detailed, but equally binding regulations.
These typical forms of law-making activity in the modern regulatory state could
never be accomplished by the slow and fragmentary resolution of individual
disputes by appellate courts. Judicial decision-making is, by its nature, designed
to resolve immediate and particular claims made by a party under existing law,
and the courts lack the power, the expertise, and the personnel to promulgate
broad schemes of regulation. Indeed, any such attempt would be seen as an
illegitimate usurpation of the legislative prerogative.
In the United States much of this regulatory rule-making is federal in nature
embodied in statutes of the United States Congress and regulations of federal
agencies and departments. Its subject matter and content seem very far removed
from the simpler concerns of the common law in older times, but it would be a
mistake to conclude that the importance of the common law has been destroyed.
The common law system is still sharply recognisable and very vital.

III. THE CLASSIFICATION OF ENGLISH AND AMERICAN LAW

As in the continental legal systems, in the English and American legal systems
we also have to distinguish between various branches of the law.
Private law and Public law
Private law is that part of the law which is primarily concerned with the rights
and duties of equal ranking individuals. On this basis, private law includes all
branches of the civil law wherein one individual puts forward a claim against
another individual. These areas of law include, for example, the law of contract,
the law of torts, and private international law.
On the other hand, public law consists of those fields of law which are primarily
concerned with the state itself and with the legal relations between the state and
the individual who are in a relationship of superiority and subordination with
each other. Public law thus includes constitutional law, administrative law as
well as criminal law.
Civil law and Criminal law
Another method of classification is to distinguish between civil law and criminal
law. In every advanced legal system, a distinction is made between those
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branches of law which are the concern of private individuals in their relationship
with one another, for example, civil law, and that field of law, called criminal
law, which is in particular the concern of the state/government. Criminal law is a
code of conduct which the state imposes on all members of its society.
Civil law includes the law of contract, commercial law, the law of torts, property
law, family law, the law of succession and business law. In most civil
proceedings one comes across individuals suing one another, for example,
Donoghue v Stevenson: Donoghue, as the plaintiff is the person who
commences the action for the recovery of a claim while Stevenson, as the
defendant, is the person against whom court proceedings are brought.
Criminal law is solely concerned with misconduct defined as a crime or a
criminal offence. Criminal cases, known as prosecutions, are usually brought
up by, and in the name of, the state, for example, R v Johnson. This means that
nominally the prosecutor is Regina, the Queen (Rex, the King), while Johnson
is the accused person or defendant.
In the United States: civil proceedings are the same as above. Criminal
proceedings: People of the State of New York v. Brown (People v. Brown),
State of Washington v. Brown (State v. Brown), Commonwealth of
Massachusetts v. Brown (PA and KY are also commonwealths)
(Commonwealth v. Brown).
Federal cases: United States v. Brown

IV. COMMON LAW VS. CIVIL LAW

The fundamental difference is that common law is based on precedent
established in previously-adjudicated cases. Civil law is based on codes and/or
statutes and rules of decisions.
Origins: In Civil Law The Law of the Citizens of Rome; evolved to
French Civil Code in 1804 and German Civil Code in 1896. The French
Code is used in Latin countries in Europe and the Americas, former
French Portuguese, Spanish and Dutch colonies in Africa, the Middle East
and Asia. The German Code is used in Austria, Switzerland, Eastern
Europe, Japan, Korea and Taiwan.
In the Common Law Originated in England from the law of the royal
courts, which were first established by William the Conqueror;
eventually became the law common to the whole kingdom; thus the
law evolved through the cases heard by the courts; eventually split into
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courts of equity and courts of law, but that division has blurred. The
Bristish spread the common law, on some form, to its colonies.
Legislative Drafting & Interpretation: A civil code is considered all
encompassing. Laws are drafted in general and abstract terms and are
interpreted broadly to reach the spectrum of principles needed to govern
everyday affairs. Judges look to the spirit of the law and not just the
letter of the law.Judges thus interpret the law beyond the actual purpose
a legislature may have had in enacting the law.
In common law, while legislation is considered a higher authority than
case law, judges tend to interpret statutes and codes narrowly, frequently
stating that if the legislature had intended a certain coverage or
consequence, this should have been explicitly stated in the statute. Thus,
legislators tend to enact legal rules in very specific terms so that the
legislation is clear as what situations should be addressed by the law.
Unclear statutes become the province of the courts to interpret (pursuant
to a set of rules of statutory interpretation).
Source of Law: In Civil Law, statutes and codes are the major sources of
law. Lawyers and judges rely on the general principles and apply them to
the facts in a particular dispute, but the facts from prior, similar cases do
not provide the required authority necessary to decide a dispute.
In Common Law, case law is the major source of law. Cases within a
particular jurisdiction and which apply the legal rule(s) to similar sets of
facts are considered precedent.
The Study of Law: In Civil Law countries, students read and study legal
doctrine (more than or to the exclusion of case opinions). Doctrine is
the accumulated writings of professors and others learned in the law that
states/describes what the law is.
In Common Law countries, legal education relies on the case method or
Socratic method of study. Students learn to discern the law from one or
more cases within a jurisdiction, and then to predict the outcome of or
advocate a position in a dispute based on the similarities and differences
between the facts of these precedent cases and the facts in the current
dispute. The doctrine described above in Civil Law, is considered in the
Common Law as a secondary source of law, which helps to explain or
understand the law, but which is not itself the law.

V. THE SOURCES OF ENGLISH AND AMERICAN LAW

The courts which apply the law are also the interpreters of the law. The
sources of law are therefore the sources to which the courts turn to in order to
determine what is lawful.
In the English legal system four sources are traditionally identified:
Legislation
Judicial precedents (case law)
Custom
Books of authority
The first two are the principle sources, while the other two are subsidiary
sources. Custom as a source of law, refers to the basis of the common law
itself. The common law was not a new set of laws introduced by the Normans, it
was developed on the basis of existing customs and law. These customs have
been incorporated into the common law and are therefore really not a separate
source of law. Books of authority is a term used by legal writers to refer to a
number of early legal textbooks. These books are treated by the courts as
authoritative statements of the law as it was at the time at which they were
written, on the authority of their authors alone. They are legal treatises written
by famous jurists, such as Coke and Blackstone, and have shaped the law.
Consequently, they are treated as authoritative statements of the law as it is at
the present time, unless it is shown that the law has changed, and may be cited
and relied on in court as such.
In the American legal system, the following sources are traditionally identified:
State and federal constitutions
Legislation (state and federal statutes)
Judicial precedents (case law)
Regulations
Restatements of Law (unofficial and secondary source of law)
A word about legislation: Legislation is enacted law. It is made in documentary
form by an Act of Parliament in England and by a Bill in Congress, in the
United States. The Parliament, as in continental countries, is the legislature or
legislative body. In the United States, it is Congress composed of two houses:
the House of Representatives and the Senate.
Legislation can:
create new law
repeal existing law
amend existing law
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A fundamental principle of the English Constitution is parliamentary

sovereignty. This means that the law set out in an Act of Parliament cannot be
declared invalid by anybody in the state/government. This contrasts with the
situation in the United States of America. In the USA, the Supreme Court has
the power to declare legislation unconstitutional and therefore inoperative.

V. THE COURT STRUCTURE OF THE U.S.A. AND BRITAIN

THE AMERICAN COURT SYSTEM
The justice system in the United States consists of two separate levels of courts,
state and federal, that peacefully coexist under the concept of federalism.There
are two types of trials: criminal and civil.
CRIMINAL TRIAL
The government is prosecuting an individual for an offence that threatens the
security of individual citizens or society as a whole.
Parties to a criminal trial:
Judge
Jury (not always)
Prosecutor
Defendant
Defense Attorney
Barrister/Solicitor/Solicitor Advocate
Witnesses: Police Officers, Eyewitnesses,
Family/Friends, Victim and Defendant
Terms used in criminal trials:
Standard of Proof: beyond a reasonable doubt
Prosecution (to prosecute)
Verdict
Conviction (to convict)
Acquittal (to acquit)
Guilty/Not Guilty (the jury finds the defendant )
Punishment (fine/sentence)
Voir dire
Indictment/Information
Jury Nullification
Hung Jury
Mistrial
Judgment
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Expert

Witnesses,

 Punishment (fine/sentence)
Probation
Parole

CIVIL TRIAL
Civil trials are disputes between two parties.
Parties to a civil trial:
Judge
Jury (sometimes)
Plaintiff (Claimant)
Defendant (Respondent)
Barrister/Solicitor/Solicitor Advocate
Witnesses: Eyewitnesses, Expert witnesses, Family/Friends, the parties
themselves
Terms used in civil trials:
Standard of Proof: preponderance of the evidence
Lawsuit (to sue, bring/initiate a lawsuit)
Claims
Verdict
Judgment
Liable/Not Liable (the jury/judge will find for the plaintiff or for the
defendant)
Damages (state the amount, if any, or damages awarded. Compensatory
damages, punitive damages, nominal damages)
Settlement
ADR (mediation and arbitration)
Terms used in appeals:
Appellant (Petitioner)
Appellee (Respondent)
Opinion
Reversed, Remanded, Affirmed
Writ of Certiorari
Majority Opinion
Concurring Opinion
Dissenting Opinion

Although each state is free to arrange its own court system (within certain
constitutionally defined boundaries), most states justice systems have several
features in common.

STATE COURT SYSTEM

Trial Court (sometimes referred to as Superior Court or Supreme Court Trial
Division, lowest level court in trials where state law is alleged to have been
violated) This is the only court with the power to determine the actual facts
involved in a case (usually done by a jury).
Court of Appeals (or Supreme Court Appellate Division in some states)
Whereas trials are focused around the testimony of witnesses concerning their
actions or observations, appeals feature two attorneys attempting to convince a
panel of five judges that the law favours their side. The only issue in a court of
appeals is whether or not correct trial procedure was followed; attorneys prepare
written briefs citing historical precedents and rulings to persuade the panel of
judges to rule in their favour. If unsatisfied with the appellate courts ruling, a
party can ask for a Writ of Certiorari, which is essentially an appeal to the
states highest appellate court (to the state Supreme Court).
State Supreme Court (highest state appellate court)
General Information about the state court system:
Generally, there is a three-tier system although some states have four tiers.
Names of the courts vary from state to state (sometimes they are referred to
as Superior Court or Supreme Court Trial Division).
These trial courts are the lowest level courts where state law is alleged to
have been violated. This is the only court with the power to determine actual
facts involved in a case.
Courts hear both criminal and civil cases.
State system is separate and distinct from federal system.
U.S. Supreme Court can review state decisions that are based on federal law.
Appeal of a state case is heard by a court of appeals (sometimes referred to as
Supreme Court Appellate Division in some states). Whereas trials are
focused around the testimony of witnesses concerning their actions or
observations, appeals feature two attorneys attempting to convince a panel of
five judges that the law favours their side. The only issue in an appellate
court is whether or not correct trial procedure was followed; attorneys
prepare written briefs citing historical precedents and rulings to persuade the
panel of judges to rule in their favour. If unsatisfied with the appellate courts

ruling, a party can ask for a writ of certiorari, which is essentially an

appeal to the state supreme court.

FEDERAL COURT SYSTEM

Federal Trial Courts (U.S. District Courts)
District Court is a trial court cases start here therefore fact finding is
conducted here.
Cases are heard before jury and/or one judge.
There are also two special courts at this level: International Court of Trade
(cases involving international trade and customs issues) and the Court of
Claims (hears civil claims against the U.S.).
Court is bound by decisions of the Court of Appeals for its circuit and the
Supreme Court.
U.S. Circuit Court of Appeals (13 throughout the country)
The Court of Appeals consists of 13 circuits including D.C. and Federal
Circuit.
Appeal is as of right to the Court of Appeals.
Court generally only looks at legal issues, not facts.
Hearing is before a randomly selected three judge panel.
Number of judges in each circuit ranges from 6 (1st Circuit) to 28 (9th
Circuit).
A decision by a judge panel can be reviewed by full panel (called en
banc).
Court of Appeals is bound by decisions of the Supreme Court only.
U.S. Supreme Court
The U.S. Supreme Court consists of 9 justices appointed for life and
selected by the President.
Leave must be granted to get hearing in the Supreme Court and it is
normally granted if there is a serious legal question or a split in the
circuits.
Hearing is before entire panel.
4 justices must agree to hear a case before an appeal is granted.
The Supreme Court is not bound by past decisions, although they are
given great weight.
Out of the approximately 5,000 cases each year appealed to the U.S.
Supreme Court, it actually hears between 100 to125 of them.
The procedure at this level is similar to that at the appeals court; each
attorney addresses the panel of justices, which can interrupt at almost any
time with questions.
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 The ruling of the U.S. Supreme Court is final, although a future Court
may overturn that decision (such as Plessy v. Ferguson).
One of the primary reasons that parties in a case might appeal their case to
the Supreme Court is because they feel that the law which they violated
was unconstitutional. The Supreme Court alone has the power to strike
down federal or state laws that it finds to be contrary to the United States
Constitution. In that sense, the judicial system is the guardian of civil
liberties in America.

BRITISH COURT SYSTEM

The British court system is a two-tier system, with one branch for civil cases
and one for criminal cases. There are no separate courts for areas such as
administrative law, and there is no constitutional court. Civil and criminal
jurisdictions are also not completely separated, because most courts deal with
both types of cases.
Magistrates Court
Virtually all criminal cases start here (95% of criminal cases) however
magistrates courts have also civil jurisdiction.
On the civil side, they deal with the recovery of certain debts, for example
payments for water and electricity, and domestic and matrimonial matters.
Magistrates courts are staffed by either two or more unpaid laypersons,
called lay magistrates or justices of the peace or by one stipendiary
magistrate.
The magistrates are assisted by the clerk of the court, who is himself
legally qualified and advises on questions of law, practice and procedure.
This court deals with less serious offences, so-called petty crimes.
The magistrates courts can impose fines or terms of imprisonment up to
certain limits.
Appeals from the magistrates courts are heard by the High Court in civil
matters, and by the Crown Court and a Divisional Court of the High Court
in criminal cases.
County Courts
County courts deal only with civil cases, and only with small claims, the
value of which does not exceed certain fixed amounts of money.
Jurisdiction is limited geographically in that it is local. This means that
there must be some connection between the case and the county court
before which it is brought.
Cases are heard before circuit judges or district judges.
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 Civil cases generally do not have juries.

Many circuit judges are part-time judges.
Appeals from the county courts are heard in the Court of Appeal, except
for bankruptcy matters, which go to a Divisional Court of the High Court.
Crown Court
Unlike magistrates courts and county courts, which are separate courts
spread all over the country, the Crown Court is just one court, which can
sit anywhere in the country at any time, and even in several different
places at the same time. When sitting in London the Crown Court retains
its historical name of Central Criminal Court and it is colloquially referred
to as the Old Bailey, after the street in which the court building is situated.
Jurisdiction of the Crown Court is exclusively criminal. Indictable-only
offences such as murder, manslaughter, rape and robbery are tried here.
Cases are tried before a judge and jury.
Either-way offences are transferred from the magistrates courts.
The Crown Court hears appeals from the magistrates courts. The
rehearing of cases can be based on both points of fact and law.
Judges of the Crown Court are High Court judges, circuit judges and
recorders, who are experienced solicitors and barristers acting as part-time
judges.
The more serious offences are tried before a High Court judge, while the
less serious offenses are dealt with by circuit judges and recorders.
The Crown Court hears sentencing decisions transferred from the
magistrates courts.
Appeals from the Crown Court are heard at a Divisional Court of the High
Court and the Court of Appeal (Criminal Division).
High Court of Justice
Like the Crown Court, the High Court is one court which may sit
anywhere in England or Wales.
It consists of three divisions: Queens Bench Division, Chancery Division
and Family Division.
The High Court has both civil and criminal, and original and appellate
jurisdiction.
The cases are heard by High Court or puisne judges, who are divided
between the three divisions.
Appeals from the High Court go to the Court of Appeal.
In certain circumstances an appeal directly to the Supreme Court of the
UK may be possible, under the so-called leapfrog procedure.
Criminal cases also progress directly to the Supreme Court of the UK.
The Queens Bench Division is the largest division of the High Court.
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 Its main work is as court of first instance for civil matter, especially
contract and tort claims.
The Queens Bench Division can hear appeal in civil matters, for example
from certain tribunals, but most appeals are criminal appeals from the
magistrates courts and the Crown Court.
This represents the entire criminal jurisdiction of the High Court and is
appellate only. The appeals are dealt with by a Divisional Court, which
consists of two or three judges of the division.
The Chancery Division is mainly a court of first instance. However, it
does have a limited appellate jurisdiction, for example in relation to
bankruptcy cases, which are heard by a Divisional Court.
This division hears cases dealing with land, mortgages, trusts, as well as
disputes between landlords and tenants.
The Chancery Division also includes a specialist court, namely the Patent
Court, which deals with patent actions.
The Family Division deals with all cases concerning matrimonial issues
and children, as well as matters relating to legitimacy and adoption which
come before the High Court.
In these matters, the Family Division has both original and appellate
jurisdiction. The appeals it deals with come mainly from the magistrates
courts.
Court of Appeal
Although the Court of Appeal can sit anywhere in the country, it almost
exclusively sits in London.
The Court of Appeal is split into criminal and civil divisions, and its
jurisdiction is almost entirely appellate.
The Civil Division is headed by the Master of the Rolls (M.R.) and the
Criminal Division by the Lord Chief Justice.
In civil cases, the Court of Appeal must grant permission for appeal to be
heard. In criminal cases, appeals on a point of law are always possible but
appeal on any other ground and appeal against sentence can only be
brought with permission of the Court of Appeal.
The Court of Appeal can review both, points of fact and law.
The judges of the Court of Appeal are called Lords Justices of Appeal.
Courts below are bound by the decisions of the Court of Appeal.
Supreme Court of the United Kingdom (formerly the House of Lords)
The Supreme Court of the UK has both political and judicial functions,
and although the two are interlinked they must be kept separate.
It is the highest court of appeal in the country for both civil and criminal
matters. Appeals come from the Court of Appeal and occasionally from
the High Court.
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 The judges are called Lords of Appeal in Ordinary (the so-called Law
Lords).
An appeal will normally be heard by five Law Lords, although seven may
sit if the case is especially important or controversial. The Supreme Court
of the UK only looks at the points of law of public interest.
The Supreme Court of the UK must grant leave (permission) to hear case.
Decisions of the Supreme Court of the UK are binding on all English
courts, except the Privy Council. These decisions can only be overruled
by the Supreme Court of the UK itself, which may do so since 1966, or by
Acts of Parliament.
Privy Council
Like the Supreme Court of the UK, the Privy Council has a dual
function. It is the remnant of the Curia Regis, the early advisory body
of the King. Its members are mainly former and present Cabinet
ministers and the Lords of Appeal in Ordinary.
Today its role is mainly advisory and formal.
The Judicial Committee of the Privy Council hears certain specialist
appeals, for example, from the ecclesiastical courts of the Church of
England.
The Privy Council is also the highest court of appeal for British
colonies and a number of members of the Commonwealth.
The number of countries which submit appeals to the Privy Council
has declined steadily. Over the past years, a significant part of the
appeals dealt with by the Privy Council came from Hong Kong.
New Zealand is one of the few remaining countries which accept the
English Privy Council as their highest court of appeal.
The decisions of the Privy Council are based on the law of the country
which has submitted the appeal and are binding on all courts in that
country, but not on English courts.
The Privy Council is not bound by the decisions of the Supreme Court
of the UK.
Decisions of the Privy Council usually have a strong persuasive
authority and are often followed in English courts.

The above information concerning the British court system was taken and revised by instructor from the
following sources:
1. Sims, Vanessa, English Law and Terminology. A Guide for Practitioners and Students., Ed. 2001 Nomos
Verlagsgesellschaft Baden-Baden
2. The English Legal System at www.bpp.com/acca/downloads/sc/ATF47-Sc.pdf
3. Her Majestys Courts Services which includes an excellent diagram of the court system downloadable .pdf

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