Characteristic Features of the Legal Family of the Common Law
The characteristic features of the legal family of the Common law are completely different from the law of all systems of the Romano- Germanic family. In view of the fundamental work on the question of differences between them, we refer the reader to the existing literature. We here endeavour briefly to characterise in the form of theses the peculiarities of the legal family of the Common law, which are as follows:
First, the English Common law, unlike Romano-Germanic law, was developed not in the universities nor by legal scholars, nor doctrinally, but rather by legal practitioners. Hence a certain spontaneity and nonimmensity of the legal expanse and the absence of rational principles and strict logic in its structure. Countries of the countries of the Common law did not accept Roman law in which primacy of position is accorded to the civil law. Consequently, in the countries of the legal family of the Common law there is no division of law into public and private. But an historically-formed Common law and law of equity exists that is reflected in the system of the consideration of cases in courts.
A strict branch classification is not a property of English law, although the base branches have been stably developed. The more weighty legal institutions for Anglo-American Common law are, on the contrary the developed legal procedures on the basis of which material branches of law also develop. This is one of the cardinal distinctions between the legal family of the Common law and Roman-Germanic law. The procedure for the consideration of disputes has for judges the most vital significance.
The existence of a court of jurors in these countries also furthered the impetuous development of procedural law since a judge decided only questions of law, whereas questions of fact were decided by the jurors.
Second, norms of the Common law were born during the consideration of specific cases by the royal courts, and therefore they are less abstract and directed towards the settlement of specific disputes rather than the establishment of general rules of behaviour for the future. Thus, codification is not characteristic of the legal family of the Common law. Even if in individual countries there are codes of the particular family, they materially differ from codes of the countries of Romano- Germanic law.
Third, judicial precedent flourishes in the countries of the Anglo- American legal family. Norms of law are created by judges when rendering decisions in concrete cases. Unlike the judge of countries of the Romano-Germanic legal family, the judge of a country of the Common law "measures" the specific case not against the rules of a prevailing norm of law, but against existing similar judicial precedents.
According to the well-known political figure and Prime Minister of England, B. Disraeli, "Precedent perpetuates principle". The study and analysis of previously adopted judicial decisions enables them to be used in substantiation of subsequent decisions.
Fourth, judicial precedent and judicial practice are not the same. Precedent differs from judicial practice, that is, a summary result of the consideration of specific cases, in that precedent is created by an individually rendered judicial decision which only the highest judicial instances have the right to adopt, in England a decision of the House of Lords binding upon all courts or a decision of the Court of Appeal, binding upon itself and inferior courts. Norms contained in precedents may fulfil a dual role: formulate provisions which are lacking in normative acts, interpret and explain articles of prevailing law. In interpreting a norm of law, a court may change it.
Fifth, judicial precedent is an interesting phenomenon ensuring the effectiveness, predictability, and uniformity of judicial practice. Effectiveness is reflected in the speed of rendering a decision on the basis of analogous cases previously considered. Predictability is manifested in two senses: knowledge of existing precedents either enables the quantity of cases to be considered to be reduced in a court (since the outcome of the cases is clear) or to work out the legal foundation of the case in accordance with preceding precedents.
Uniformity means the same approach to analogous cases on the basis of precedent.
One may contest this assessment of precedent, as I. V. Reshetnikova justly notes, since neither a norm of law nor a norm of precedent may provide for all the permutations of a specific judicial case. Each case is distinctive and in some degree or other will differ from the model and from the legislative and precedential provision. However, one can not deny the significance of precedent, capable of regulating gaps in jus or lex.
Sixth, legislation as a source of law gradually is taking a more important place than earlier in the legal system of the countries of the Anglo-American legal family of the Common law. The role of lex is growing, as is the noted impact of international European law. Legal conceptions are changing, as are the approaches of English jurists to law-creation and law enforcement. Despite the rapid development of legislation for the last century and a half the principle is preserved that according to which a norm of lex acquires real sense after its application in a court. Therefore, precedent continues to play a pre-eminent role in English law. The existence of judicial precedent truly places legislative, executive, and judicial power on the same level, each of which is competent to adopt acts serving as sources of law.
Seventh, modern legal regulation of the process of considering cases in courts, although consolidated on the level of a law, was worked out by the judges. For example, in England laws on the administration of justice are worked out by specially created committees in which judges are members together with other subjects. These rules are confirmed by the Lord Chancellor and enter into force unless the drafts encounter objections from Parliament.
The United States Supreme Court is empowered to prescribe rules to federal courts concerning judicial proceedings which are binding upon district courts and courts of appeal. These acts enter into force unless after their approval by the United States Supreme Court objections follow from Congress.
Eighth, the contemporary correlation of judicial practice and legislation is changing the role of legal science. Legal research is based on the detailed analysis of existing precedents, which in practice makes them commentaries on juridical practice by which judges are guided. Scholarly works often are cited in courts, even though written long ago. A large number of books are written by judges. The special status of judicial precedents also influenced the content of instructional legal literature, especially the publication of books which generalise court cases and offer a critical analysis of them.
Ninth, Codification is not characteristic of countries of the legal family of the Common law. Even if there are codes, they are of a different character than the codes of countries of the Romano-Germanic legal family. In many states of the United States there exist civil and civil procedure codes, but they represent the result of the consolidation of law, which distinguishes them from European codes.
Tenth, the presence of a court of jurors is characteristic of the legal family of the Common law. Although juries have been accepted also by Romano-Germanic law, that institution has left an indelible imprint on the law, for example, of England and the United States. The very essence of the process of the consideration of cases distinguished by the theatricality of the behaviour of advocates and representatives of the parties has been dictated by the need to convince jurors about the truthfulness of their version of the case. The development of procedural law in England and the United States must have overtaken that in Europe, since jurors, being nonprofessionals, have been endowed with important powers when deciding a legal dispute. For this reason specific legal institutions have arisen, for example, hearsay testimony, and a mass of exceptions from the rules of nonadmissibility of such testimony in court.
Eleventh, the significance of ancient custom is retained in England, distinctive for many centuries of stability and universal public recognition. In the absence of a written Constitution there operate as constitutional customs attributes of the monarchical State; ministers are regarded as servants of the Queen (or King), and salaries, pensions, and so on are given in the name of the Queen.
Thus, in the English Common law much is original, which determines its place on the legal map of the modern world.