Kara Sears
Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history to Roman law. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. On the other hand, a political constitution is a document that establishes the rules and principles that govern a political system, outlining the powers and responsibilities of the government and the rights and freedoms of the citizens. It is a fundamental framework that defines the relationship between the government and the governed. For example, Ghana's 1992 Constitution enshrines the common law system inherited from British colonisation, adapting it to the country's changing socio-economic and political realities.
| Characteristics | Values |
|---|---|
| Common law courts' relationship with precedent | Common law courts are not bound by precedent, but can reinterpret and revise the law without legislative intervention |
| Common law vs. statutory law | Common law is more malleable than statutory law |
| Common law in Ghana | The laws of Ghana are a modified version of English common law that is continuously adapting to changing socio-economic and political realities |
| Common law in the US | Federal common law was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas outside the traditional jurisdiction of state law |
| The Constitution's relationship with common law | The Constitution constrains all uses of judicial power, not just those considered to be 'state action' |
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What You'll Learn
Common law vs civil law
Common law and civil law are two main types of legal systems in the world. Common law, also known as case law, is a system that relies heavily on judicial precedent. It is usually contrasted with civil law, which is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems are characterised by their reliance on legal codes as the primary source of law.
Common law systems recognise prior court decisions as legally binding precedent. For example, in a common law system, a plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong. This shifts the court's attention from technical scrutiny of words to a more rational consideration of the facts, broadening access to justice. Common law is more malleable than civil law, as common law courts can reinterpret and revise the law without legislative intervention to adapt to new trends.
Civil law, on the other hand, is generally more prescriptive than common law. While civil law judges tend to give less weight to judicial precedent, common law systems place great importance on precedent in their decision-making. Common law systems are typically found in former British colonies or protectorates, such as the United States and Ghana, where the laws are continuously adapting to changing socio-economic and political realities.
In civil law jurisdictions, a separate administrative law often governs PPP arrangements, and unless the contract specifies arbitration, it will be enforced by administrative courts. Civil law codes are more similar to the Restatements of the Law and the Uniform Commercial Code in the United States. Louisiana is a unique example within the US, as its private civil law is heavily based on French and Spanish codes rather than English common law.
In conclusion, the key differences between common law and civil law lie in their historical origins, the weight placed on precedent, and the level of prescription and codification. Common law systems are more adaptable and flexible, while civil law systems are more rigid and reliant on legal codes.
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Common law's flexibility
Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems, on the other hand, trace their history back to English common law, which has been adopted and adapted by other countries, such as Ghana.
One of the key features of common law is its flexibility and malleability. Common law courts are not strictly bound by precedent and can reinterpret and revise the law without legislative intervention. This allows the law to adapt to new trends and changing socio-economic and political realities. For example, Ghana's legal system is based on the English common law tradition inherited during colonisation. However, it has since been modified and adapted to suit the country's evolving context, demonstrating the flexibility of common law.
The flexibility of common law is further illustrated by the process through which plaintiffs initiate cases. In common law, plaintiffs provide defendants with a "short and plain statement" of the facts constituting the alleged wrong. This approach shifts the focus from technical scrutiny to a rational consideration of the facts, broadening access to justice.
The inductive nature of common law, as noted by Justice Cardozo, contributes to its flexibility. Common law draws its generalisations from specific cases and is not constrained by pre-established truths. This allows for the gradual emergence of consensus and the adaptation of the law to new philosophical, political, legal, and social contexts.
In certain contexts, such as in the United States, the application of common law is constrained by the Constitution. Federal common law is limited to specific jurisdictions stated in the Constitution and can be overruled by Congress on Constitutional and procedural issues. However, there are exceptions where federal courts can create federal common law rules without statutory authority to protect uniquely federal interests.
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Common law and the constitution in Australia
Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to Roman law. One of the defining features of common law legal systems is the role of written decisions and precedent as a source of law. Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention.
In Australia, the constitution's influence on common law has been discussed in several cases, including Lange v Atkinson and Pfeiffer v Commonwealth. The concept of 'Constitution' in this context may include broader concepts such as constitutional 'values', 'principles', or 'matters'. Australia is unusual among common law countries in not having a Constitutional Charter or Bill of Rights. However, common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
A well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to intend to limit fundamental rights unless it indicates this intention in clear terms. This presumption includes fundamental rights recognised by the common law, such as freedom from slavery and trafficking in persons, as well as the right to privacy and freedom of association. The Australian courts should favour constructions of legislation that accord with Australia's obligations under international treaties and conventions to which it is a party.
The Privy Council (Appeals from the High Court) Act 1975 removed the right to appeal from the High Court to the Privy Council on non-constitutional matters, such as common law or state laws. This Act was preceded by the Privy Council (Limitation of Appeals) Act 1968, which removed the right to appeal on constitutional or federal law matters.
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Common law in the US
Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems, on the other hand, trace their history back to English common law, which itself has been inherited by countries such as Ghana.
In the US, the federal common law was limited to some jurisdictions stated in the Constitution after Erie v. Tompkins (304 U.S. 64, 78 (1938)) overruled Joseph Storey's decision in Swift v. Tyson. These jurisdictions include admiralty and possibly some areas that are not under state law. For example, federal common law rules can be created by US federal courts without express statutory authority when a federal rule of decision is necessary to protect uniquely federal interests, such as in foreign affairs or with financial instruments issued by the federal government.
The US Supreme Court has held that federal courts hearing cases under their diversity jurisdiction—which allows them to hear cases between parties from different states—must apply the law in a way that does not discriminate against non-resident parties. This means that the federal common law is more malleable than statutory law.
Common law courts in the US are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention. This allows the law to adapt to new trends in political, legal, and social philosophy. For example, a plaintiff can initiate a case by giving the defendant a "short and plain statement" of the facts that constitute an alleged wrong, moving the court's attention to a more rational consideration of the facts.
The English Court of Common Pleas, established after the Magna Carta in 1215, tried lawsuits between commoners in which the monarch had no interest. This curbed the power of canonical (church) courts and brought the English court system into conflict with the church.
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Common law in Ghana
Ghana follows the English common law tradition inherited from British colonisation. This system of law was formalised in the country by the Supreme Court Ordinance of 1876 and has been maintained since Ghana's independence, now enshrined in the country's 1992 Constitution. Ghana has had four constitutions in total, the first being established in 1960, followed by the 1969, 1979, and 1992 Constitutions.
Common law systems trace their history to English common law, which is contrasted with civil law systems that trace their history to Roman law. Common law is more malleable than statutory law, as common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention. Case law and judicial precedent play an important role in the law and its development in Ghana, as a common law jurisdiction.
The court system in Ghana includes the Supreme Court, the Court of Appeal, the High Court, the Circuit Court, and the District Court, in hierarchical order. The Supreme Court is the highest court with original jurisdiction in matters relating to enforcing and interpreting the Constitution and with supervisory jurisdiction over all other courts. The 1992 Constitution mandates the independence of the judiciary and states that the Supreme Court shall be the final court of appeal.
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Frequently asked questions
Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code to Roman law. Common law is often wrongly understood as "judge-made law", which is anathema to a constitutional order based on the sovereignty of the people.
A political constitution is a founding document, like the Declaration of Independence, that is grounded on natural rights. It is a written constitution based on specific codes that enshrine basic rights and duties.
Common law is more malleable than a political constitution. Common law courts are not absolutely bound by precedent, but can reinterpret and revise the law without legislative intervention. In contrast, a political constitution is based on the sovereignty of the people, with the power to legislate vested in elected representatives.
