Introduction to Common Law
Part 1: Introduction
Black letter law/substantive law
Black letter law=refers to law that is undisputed and well-established
Substantive law= (spelregels); law that governs how one should behave
Sources for this kind of law: code, statutes, ordinance, law determined by judges.
Legal theories/social policies
CL is the English customary law that relies on precedents of case law (<> statute law (wetsrecht))
Social policies (more specific than legal theory)= something put in place to target a particular social enigma (ex.
Poverty, urban development, quality of education)
-Common law as organic law:
Organic: living and breathing and constantly changing
Society changes, law has to be applied in society and therefore, cannot be fully stagnant
-not just applying black letter law (this creates injustice/nt always in the best interest of the
public)
Example: 125years ago, Queen Victoria on the throne in the UK: Women were
arrested for violation of sanity law for wearing a bikini.
Statue: forbidden to wear obscene costume in public
CL judges decided not to convict anymore people for wearing bikini’s:
therefore, we can see that the interpretation of the word obscene has evolved
Law has to change with moral standards → this makes law organic
It is not necessarily the law itself that changes but the way it is applied.
-application of old doctrine to new phenomena: apply new facts to an old theory/doctrine. To do so the
application of the doctrine/theory has to change to fit contemporary public policies/habits.
You can also create new precedent once you have established that the facts differ from previous cases (because
no case is exactly the same).
Checks and balances
Separation of powers
(a form of checks and balances; each branch needs to keep the others in check so that they do not exceed their
duty): executive, judicial and legislative
3 separate but equal branches of government
Branch of government Who Task
Executive President and vice-president Enforces the law
Legislative Congress: house of representatives Makes and changes the law
and senate
Judicial Supreme court Interprets the law1/make
judgements on law
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The judiciary have the task to interpret (through tests and standards) the existing law and make their own
(=common law)
Why tests: To see if the norm passes constitutional lesture
If there is no test, they can invent one
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,Law making function
Every branch has a lawmaking function.
Legislative power:
-legislative drafting (=wetsontwerpen)
(superiority of the legislator in terms of law making function= primary lawmaking function)
Primary law making function but the most laws are administrative rules that have a character
of law (delegated law/responsibility)
Executive power:
-Implement policy
-Recommend legislation
-Veto authority (can veto a law) (ex. Congress enacts a law → president can veto → Congress can
override veto with ⅔ of votes)
Judicial power:
-Judge made law (=case law= legal rule/decision based on past decisions in different cases)
Example of judge made law: The exclusionary rule: If evidence is obtained illegally then it is
excused in trial/cannot be used as evidence
What’s the purpose of judge-made law? the judges develop this to ensure people’s rights are
protected and add rules to ensure the gaps of the law do not result in a breach of rights
Cannot actively make law! Judges can only decide cases that come before them.
Issues with judge-made law:
-a more laborious process (more money and time)
-more complicated process than through the Parliament
-judges can interpret law differently but are gatekeepers of the status quo (they need to weigh
if the tendance is temporary or not)
-Striking down an unconstitutional law
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, Judicial can strike down portions of the law that are not constitutional
Can all judges strike? Yes: but if it’s done by the lowest court, the decision can be appealed
to a higher court. Any court can start the process to strike a law as unconstitutional but only
the Supreme Court can make the decision.
-Judicial review of government action: only happens when an application is filed (niet van rechtswege)
News: the department of justice in the US is seeking evidence to endic Trump; a check on a former chief
executive on an action taking during his presidency (13/10/22).
Constitutionalism
Central role of constitution as the touchstone of legitimacy.
Checks and balances:
the structure of government where one branch of government can keep the other two from gaining primacy. The
branches work together and control each other.
Rule of law
(NDL: rechtsstaat): the restriction of the arbitrary exercise of power by subordinating it to well-defined and
established laws.
(in US based fundamentally on the constitution and the interpretation of the constitution)
Rule of law <> rule of man (=a personal rule in which the rules and regulations vary with the rulers) (ex. China)
History of the Common Law
Common Law developed out of the customary law of England.
Timeline:
-Rome occupied England and brought their law
Romans had complex law: the continental legal system is Roman law that has had an evolution
In England:
-retained its legal identity: each village had its customary law (NDL: gewoonterecht)
Thus increasing friction between the nobles (who wanted the highest power) and the royals. To keep
their power, the royals took over the legal system:
-efforts to systemize local norms throughout England
-Kings appointed judges, each with their own circuit. They decided cases and established a common
law by writing these decisions down. (=birth of precedent)
These decisions were appealable to the King himself (this was a lot of work so → house of
Lords)
-The king appointed the ‘house of lords’
-The consolidation of customary English law was done for the king to cement his powerbase. This eventually
resulted in the Magna Carta 1215
Magna Carta Libertatum 1215: limits the power of the royal house/rejects royal absolutism and
favoured nobility (the magna carta established the rule of law over the rule of monarchy)
-English Bill of Rights 1687: provides for the rights of the people
-US constitution and Bill of Rights 1791:
Served as a template in international law (particularly for civil and political rights): human rights and
fundamental liberties ((International Covenant on Civil and Political Rights, afgekort ICCPR),
european provision of rights (EVRM))
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, Social contract and natural law were intellectual trends of the time of the US constitution:
-19th century: King’s power started decreasing (but was still in power); but applying law became a legislative
task.
CL developed extensively in the 19th century especially in substantive private law (ex. Torts, contracts,
etc.)
-20th century innovation led to extensive regulatory law
-21s century has placed a greater emphasis on statutory law (not cases) as judicial decisions became codified by
the legislature.
Through all this development: precedent is still binding!!
-Dissemination (verspreiding) of the law:
-England exported the CL to its territories and colonies (including US, HK) in the 16-19th century
-European jurisdictions exported civil law (RL developed) (roman law) to their colonies.
Progress
From ‘divine power of the king’ regime to the modern human rights regime.
How did this happen: see history and a lot of movements:
Social contract and natural law were intellectual trends of the time of the US constitution:
-Social Contract Theory: every citizen has a contract with their state. Both state and citizen have
obligations: safety, economy, rule of law– taxes, fight in war, etc. (Hobbes, Locke, Rousseau)
-Natural rights doctrine: laws that are innate, inherent to us as human beings. (<> legal positivism)
CL system→ changing very slowly, judges are the gatekeepers of the status quo
Legislators/political bodies have a tendency to make more radical changes (if these changes are unconstitutional,
the judges will strike them down)
Judges are conservative in judge made law because ‘should they change the status quo’? Because a change in a
societal concept, is it a fundamental change or a fase. And law should not reflect a fase. Therefore, change
should be slow and reflect trends/the direction of the society not fases.
Lord Devlin 1981 illustrates this in his quote.
-growth of new areas of the law: environmental law, workplace safety (ex. Regulations on child labour), etc.
Other forms of law:
Shari, Indegenous law, judai law, customary law, international law.
Common law as methode
Adversarial system(<>inquisitorial process)
“The inquisitorial process can be described as an official inquiry to ascertain the truth, whereas the
adversarial system uses a competitive process between prosecution and defence to determine the facts.”
CL: adversarial system
Because its based on a contest, the rules of evidence are very important (common law rules
are far stricter than in civil law)
Why this system: if 2 sides battle, the truth will come out
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