Origins of Common Law (3)

Law Merchant

The rise of cities presented a special problem. It was based on trade, and trade requires laws. Trade demands laws that governing commercial transactions: banking, contracts, shipping, agency and the like; very different from the law of agricultural and feudal communities of the time. At an early stage, the cities established the right to hold their own courts; and, under the leadership of the Lombard cities, the Law Merchant came into existence. It is thought to have its sources in ancient Italy among tradesmen there. The Law Merchant contained much of the same sort of rules of law governing trade and commerce as the Code of Hammurabi. In the eighteenth century, Lord Mansfield, in his judgments, made the doctrines of the Law Merchant an integral part of Common Law (Read, 1955, p. 35-36).

Stare Decisis

When translated from the Latin, it literally means, “stand by things decided.” Stare decisis has evolved as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court; it is not the judge’s function to make or remake the law that is the function of the legislature. However, judges to make law even though they try not to; indeed it is their function, under a system of common law, to do so; but not consciously and only over the course of time, may years, as numerous similar cases are heard and decided (Landry, 1997, p. 5).

Common Law Origins of American Constitutionalism

America identifies itself with the libertarian traditions of English constitutional history-Magna Carta, the 1628 Petition of Rights and the Bill of Rights of 1689 (O’Day, 1997, p. 29).

So many of the self-evident truths of independence, trace their origins directly back to existing common law principles including habeas corpus (a judicial writ requiring that an incarcerated party be brought before a court to determine if the confinement is unlawful) and the rule of law (the idea that law, not the discretion of officials, should govern public affairs) (Beitzinger, 1976, p. 30); (Scheb, 1999, p. 710, 721).

The reason for a basic relationship between English and American law should be fairly simple to grasp. English law arrived with the first settlers during the colonial period because all provinces’ legislation had to comply with the laws in England. To say that English legal values became entrenched in America’s legal values would be an understatement. Aspiring lawyers came to be educated at the Inns of Court. Over 2,500 copies of William Blackstone’s Commentaries were sold as the key practitioner text prior to 1776 (Lairg, 2000, p. 2).

The philosophy in the Federal Bill of Rights was a radical departure from contemporary English thinking. Both nations had solid democratic beliefs, under the conviction that government should obey the popular will. But in England, attention was focused on the democratic structure of government. Oliver Cromwell had encourage experimentation with governmental structure, and English lawyers were proud of the mixed monarchy of King and Parliament which had emerged as the triumphant product of the Civil War. This inherent structural emphasis was advanced by the writings of Jeremy Bentham. He drove a firm wedge between law and morality and laid weight on the form, not the content, of law making. In this way, the promise by early seventeenth century judges to annul Acts of Parliament that proved against common right and reason was soon forgotten, and constitutional reform in the nineteenth century was geared towards structural accountability (Lairg, 2000, p. 3).

Common law methodology and philosophy was ideally suited to Independence. Sir Edward Coke and Thomas Locke wrote of the common law as a libertarian institution within which a strong, independent judiciary protected individuals from monarchical extremes. The significance of Entick v. Carrington was not lost on Jefferson. He saw the common law as espousing the rights-based philosophy that the War of Independence had sought to achieve. Government according to law was an obvious foundation stone for a new state with respect for the rights of man. So independence did not subdue the common law tide. It established the need for the active and effective judiciary which lies at the heart of any common law system (Lairg, 2000, p. 4).

Common law methodology lies at the heart of English and American law, even in areas, such as the constitution, where American arrangements appear to be very different. Both countries have long traditions of protecting basic liberties, but there have been differing philosophical and cultural influences on the legal structure. In both countries the common law has delivered basic doctrines that facilitate the contrasting approaches of both systems. The common law’s capacity to respond to localizing influences explains how both systems recognize differences of substance within strikingly similar legal frameworks (Lairg, 2000, p.11).

Yet localizing influences are diminishing. The problems that will confront Anglo-American law in the twenty-first century are no longer parochial; they are of international proportions. The old common law concepts must soon be developed to encompass issues such as genetic reproduction and regulation of the Internet. Mutual guidance will inevitably be sought throughout the common law world. The House of Lords has already begun to look to American experience with increasing regularity when considering the response of English law to novel problems, such as sanctioning the withdrawal of life support from hospital patients in a permanent vegetative state or fixing the boundaries of increasingly intrusive comment on the lives of public figures. This tendency can only be expected to grow with the progressive convergence of cultural and scientific influences across the world (Lairg, 2000, p. 11).

The Human Rights Act provides a fine example of the ways in which English law can benefit from American experience. In October of 2000, English law finally made the transition to the rights based system that has existed in the United States for over two hundred years. We have come to accept that American experience shows that a written declaration provides a more certain safeguard of individuals rights than procedural democracy through a sovereign Parliament, indispensable though that is (Lairg, 2000, p. 11).