Common Law, Civil Law, and the Supreme Court

The recent nomination of Judge Sotomayor to the Supreme Court has again brought to a head the oft heard words of “judicial activism” and “judge made law.” ”Conservatives” often make the statement that judges should only “apply the law and not make it.” But this begs the question, given the legal history of this country, is this truly a “conservative” philosophy? Such a question raises into question the entire role of judges in a common law country such as ours and perhaps the broader question of whether this country should continue to follow the common law at all (or perhaps whether we are a common law country).

Common Law

Most historians and legal scholars define the United States as a common law country. But what is a common law country? What is the common law?

There are many definitions but at its most basic, the common law is a system of laws based around the laws of England and Wales. The system was based on the developmental history of the Kingdom of England and Wales, judgments made by “law” courts in England and Wales (as opposed to equity courts) and Acts of Parliament.

A “court” was originally just that, a court for a noble. Earls, dukes and other noblemen asserted their right to judge cases between people that had sworn allegiance to them. Originally the king’s power was primarily to hear disputes between nobles or other cases with special interest to the king. Eventually, more and more people began to seek to petition the king personally.The courts’ of individual noblemen issued inconsistent rulings and were often seen as corrupt. To better meet the increasing demand, advisors or “judges” were assigned to serve as agents of the king to hear cases and administer justice on his behalf. Eventually these processes lead to a centralization of legal power with the king and a more uniform or “common” code of laws across the country.

There are several distinct attributes of the common law system. These become more apparent if we think of England and Wales as the quintessential “common law” country. They have an unwritten constitution. Their constitution is instead based around a set of principles, legal decisions and Acts of Parliament that have evolved over the years. Courts in England and Wales also have jury trials for most cases at law. Parliament’s actions have traditionally been limited (often because for hundreds of years they were only called when the king needed money), with relatively fewer acts and statutes being passed. Thus, the law was created through actions of the courts, interpreting previous rulings and applying this reasoning to new facts. This system had two obvious consequences. One was that the written decisions were often lengthy, fully explaining the judge’s reasoning behind the ruling. Second was that, for the system to function properly, it increasingly required the appointment of the most skilled and qualified legal minds.

Civil Law

The civil law, often thought of the other major system of legal organization, is the legal system that most of the world uses in one form or another.Roughly, it is rooted in the laws and legal system of the Roman Empire. It is mainly thought of a series of legal principles listed in various collections authorized from time to time and then applied through the courts. One of the most famous which is in some ways the progenitor to all the civil legal codes in Europe is the Corpus Juris Civilis, authorized by Emperor Justinian in early to mid 500’s. These European codes were eventually adopted in other countries around the world.

Modern civil legal codes are fairly specific and touch on a variety of subjects. They are updated through parliamentary action or through academic revisions. Judges in civil law countries (especially those at the lower level) are required to strictly apply the civil code, supplementing any holes in the code with academic treatises or other analyses of the code. Judges are given little leeway and, in fact in some countries, are required to issue special cases that fall outside the civil code to the legislature for their resolution (what would be called a bill of attainder in common law countries).Precedent is generally not binding on a court; only the code controls. As a consequence, unlike in common law countries, legal rulings are often extremely short and lack any legal reasoning or further explanation into the court’s ruling. The concept of judges is also different in most civil law countries. Typically, a judge are seen as state bureaucrat, a highly skilled bureaucrat with advanced degrees, but a bureaucrat just the same. These judges typically join the judicial profession right out of law school by entering the lower rung and working their way up through the system.

Why This Matters

 
This matters because it concerns the relationship between the legal system and the state. As stated earlier, the US legal system is generally thought of as a common law system. Clearly, there are certain aspects of our system that are different (we have a written constitution for example). Yet, early American history shows us that the belief that the common law should generally continue in the US was paramount. In fact, one of the first actions by the legislatures of the new states after the revolution was the so-called reception statutes in which they explicitly accepted English common law, subject to future changes by the legislature going forward. It seems clear that the intent of such actions were to continue the common law judicial approach of interpreting the law as a body of legal principles that included more than just the bold faced words on a piece of paper. Our continuing reliance on common law in areas of contracts and torts is further evidence of this.

Many people who call themselves “conservatives” who decry “judicial activism” seem to be pushing for something more akin to a civil legal system; hardly conservative at least in my mind. Our history, our legal code, our judiciary, our legal profession, they are all products of the common law. Such a shift would also seem to hint at a threat to the independent nature of the judiciary itself. At the very least, it is criticism aimed to appeal to a segment of the population seemingly ignorant of the history and legal foundations of this country.