Keith Mack
English common law has had a profound and wide-reaching influence on the legal systems and constitutions of many countries. English common law, also known as case law or judge-made law, is a legal system that gives significant weight to judicial precedent and the style of reasoning inherited from English legal tradition. This system, which was historically considered to derive its authority from ancient Anglo-Saxon customs, has been adopted and adapted by numerous countries, including former British colonies such as Ghana, India, and Pakistan. The influence of English common law can also be seen in countries like the United States, which has incorporated aspects of English law into its tort system and criminal justice procedures, such as the presumption of innocence and the standard of proof. The interpretation and application of written constitutions, such as in the United States, are also deeply intertwined with the principles and precedents established by English common law.
| Characteristics | Values |
|---|---|
| Judicial precedent | The body of law is derived from judicial decisions, rather than from statutes or constitutions. |
| Reasoning | The style of reasoning is inherited from the English legal system. |
| Jury | The jury is its characteristic institution, or the mixed regime of jury and judge. |
| Presumption of innocence | The accused is presumed innocent until proven guilty. |
| Evidentiary standard | The standard of evidence is preponderance of evidence, which is a lower burden of proof than beyond a reasonable doubt. |
| Tort law | The fundamental principles of tort law, such as personal injury law, are derived from English common law. |
| Influence on other countries | English common law has influenced the legal systems of dozens of countries, including the United States, Ghana, Nicaragua, India, Pakistan, and Bangladesh. |
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What You'll Learn
The presumption of innocence
In the 20th century, the presumption of innocence was described as the 'golden thread' of English criminal law. The Human Rights Act 1998 further reinforced its constitutional status, with courts required to interpret criminal law in a way that is compatible with the presumption.
The influence of English common law can be seen in the legal systems of many countries. For example, Ghana's 1992 Constitution is based on the English common law tradition, inherited during colonisation. Similarly, Nicaragua's legal system is a mixture of English common law and civil law, influenced by British administration. The laws of post-partition India also retain a common law system, with legislation first introduced by the British remaining in effect in a modified form today.
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The influence on the US tort system
The US legal system has been heavily influenced by English common law, which forms the basis of the US tort system. The US tort law system is primarily a matter of state law, with each state having its own constitution and laws. While the US tort system has diverged from its English predecessor, it still shares fundamental similarities.
Tort law covers a wide range of wrongs inflicted by one party onto another, aiming to provide relief to the injured party, impose liability on the responsible party, and deter similar harmful acts in the future. In the US, tort law is largely common law, as opposed to statute-based law, with specific torts including trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress.
One notable difference between US and English tort law is the inclusion of interference with privacy in US tort law. In the US, individuals can sue if their photograph is used for advertising without permission, if they are subjected to electronic eavesdropping or embarrassing photography, or if their privacy is invaded in other ways. This reflects the US's broader interpretation of privacy, whereas in England, privacy is often viewed in relation to commercial considerations.
Another difference lies in libel law. US practice is less strict than English law in this regard, as public figures cannot sue for honest but unfair and untrue criticisms of their activities. In England, published facts must be true and comments fair for a libel case to stand.
The US tort system has also been influenced by the country's complex federal system and presidential form of government, which distinguish its public law from that of England. The US has a dual sovereign system of American federalism, where states possess plenary sovereignty and have their own constitutions, while the federal government has limited supreme authority as outlined in the US Constitution. This dynamic has resulted in significant differences in state laws across the country, with each state's legislative branch enacting its own statutes and the judicial branch interpreting and applying these laws.
In conclusion, while the US tort system has evolved independently and differs from English common law in several ways, it remains influenced by its fundamental principles and continues to share similarities with its English predecessor.
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The role of the jury
The English common law has influenced the legal systems of many countries, including the United States, Ghana, Nicaragua, India, Pakistan, and Bangladesh. In the context of the US Constitution, the influence of English common law is evident in the country's tort law system and the principle of "innocent until proven guilty" in criminal justice.
The jury is a fundamental aspect of English common law, and its influence is significant in legal systems that have adopted or been influenced by it. In the English common law tradition, the jury is seen as a representation of the community's sense of right and wrong. It is a crucial institution that, along with the judge, contributes to the interpretation and enforcement of laws.
In the American constitutional law context, the jury plays a critical role in upholding political liberty. The distinction between the constitutionality of legislation and its wisdom is essential. Judicial review, an unwritten power to enforce a written constitution, is congruent with common-law interpretation. This means that the jury's interpretation of the law and the establishment of precedent are crucial in shaping the understanding and application of constitutional rights and powers.
The influence of the English common law jury system is evident in the legal traditions of other countries as well. For example, Ghana, a former British colony, has incorporated the common law system into its legal framework. The country's 1992 Constitution reflects the influence of English common law, including the role of the jury in judicial decision-making. Similarly, Nicaragua's legal system is a blend of English common law and civil law, impacting the role and powers of the judiciary and the supreme court.
In summary, the jury plays a pivotal role in English common law, and this influence extends to legal systems worldwide. The jury's interpretation of facts and establishment of precedent contribute to the development of laws and the protection of individual rights and liberties. By adopting or adapting the English common law tradition, countries have shaped their legal systems, ensuring that the community's sense of right and wrong is represented in the judicial process.
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The role of the supreme court
The US Supreme Court has also been influenced by the English Court of Common Pleas, which was established after the Magna Carta in 1215 to try lawsuits between commoners. The Magna Carta established the principles of due process and the necessity of lawful judgement, which became central to the development of the US judiciary. The English Bill of Rights (1689) further influenced the Supreme Court by outlining fundamental rights that were later expressed in the US Constitution and its Bill of Rights. The US Supreme Court's decisions are based on whether actions, even at the highest levels of government, violate basic individual rights.
The principle of stare decisis, which is fundamental to British common law, is also applied in the US Supreme Court. This principle, meaning "to stand by things decided", ensures uniformity and consistency in the legal system. The US Supreme Court also interprets the US Constitution, legislative statutes, and agency regulations, determining the boundaries and distinctions in the law.
The US Supreme Court's first session on February 2, 1790, is indicative of its connection to English common law. During this session, the justices dressed similarly to their English counterparts, reflecting the influence of English legal traditions on the US judiciary.
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The interpretation of other clauses
The influence of English common law on the interpretation of constitutional clauses in other countries is evident in several ways. Firstly, common law, as a system of law, gives significant weight to judicial precedent and the reasoning inherited from English legal traditions. This has had an impact on the interpretation of constitutional clauses in countries with a common law heritage. For instance, the United States' criminal justice system is based on the presumption of innocence, which is a direct adoption of Britain's 'innocent until proven guilty' principle.
Furthermore, the interpretation of constitutional clauses cannot be separated from common-law rules. The development of a line of precedents through analogical reasoning influences how other clauses of the Constitution are interpreted. For example, determining whether telephone conversations are more akin to postal exchanges or natural conversations has implications for the First and Fourth Amendments regarding privacy.
In some countries, the common law system has been integrated into their constitutions. Ghana, for instance, has enshrined the common law system inherited from British colonisation in its 1992 Constitution. This modified version of imported law continues to adapt to the changing socio-economic and political landscape of the country.
Additionally, the interpretation of constitutional clauses may involve examining the nature of legal interpretation and specific traditions in English law. For instance, there is a tradition of interpreting criminal statutes strictly while interpreting statutes against frauds liberally. This interpretive approach may influence how constitutional clauses are understood and applied.
The influence of English common law on constitutional interpretation is also evident in the distinction between the constitutionality of legislation and its wisdom. In American constitutional law, this distinction is crucial to preserving political liberty. Judicial review, an unwritten power to enforce a written Constitution, finds congruence with common-law interpretation, further solidifying its influence on constitutional clause interpretation.
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Frequently asked questions
The US Constitution was influenced by English common law in several ways. The US legal system is fashioned after the British legal system, including the fundamental principles of injury law or "Tort Law". The presumption of innocence until proven guilty is also derived from Britain's legal system.
English common law is a legal system that gives significant weight to judicial precedent and the style of reasoning inherited from the English legal system. It is deeply rooted in stare decisis, where courts adhere to precedents established by previous rulings.
English common law has influenced the legal systems of numerous countries, including former colonies such as Ghana, India, Pakistan, and Bangladesh. These countries have retained or modified English common law to suit their respective socio-economic and political contexts.
Common law is derived from judicial decisions and the community's sense of right and wrong, whereas statutory law is based on the commands of the sovereign. Common law is often unwritten, while statutory law is written and codified.
