Could a modern society exist with only the traditional judge-made British Common Law?

Great Debates
#1

Here’s a question especially for you law gurus. British Common Law as established by judges in the Middle Ages is the underpinning for the legal systems of most of the English speaking world, including the UK, Ireland, Canada, the US, Australia, New Zealand, and other countries. In all of these countries, however, statutes or constitutions have abolished certain sections of the common law and established additional laws because there was a perception that the Common Law was insufficient due to changing times or new, unforeseen legal situations for which the Common Law provided a socially unacceptable solution.

Could a modern society such as present in the UK, Canada, or the US today function under the traditional Common Law? For example, if the UK Parliament passed a law tomorrow abolishing all statutory law and reinstating Common Law in its entirety, could society function in a meaningful sense? One of the things I remember reading years ago was that under traditional British law, a machine could not be “deceived” in a legally recognized sense and that was why Defrauding a Vending Machine statutes were necessary - because putting a slug in a vending machine did not “deceive” it into believing it was actual money because a machine cannot believe anything, doing this did not constitute “False Pretenses”. I can possibly see that a society operating solely under Common Law might have problems with computers and the Internet, with the Internet becoming very literally a legal war zone because the law would not recognize antisocial acts committed with a computer (e.g. hacking) as fitting the elements of any offense. While my examples relate to substantive criminal law, my question is broader and relates to the entirety of the common law, whether substantive or procedural. Would immigration matters break down because Common Law does not regulate international borders? Would a country operating under it be unable to function in a modern diplomatic sense because enabling statutes permitting the exchange of ambassadors or the granting of diplomatic immunity do not exist?

If Common Law actually varied over time in its initial development, I am most interested in its final state before statutes started to modify it, but will accept another stage. Was it actually the case that Common Law itself was still in a state of flux when statutes were in the process of being passed? If so, make reasonable adjustments to this to get at the intent of my question.

#2

Statutes were adding to and modifying common law for centuries, in fact pretty much since the beginning. There was no “final shape” as you say.

I really think you do not understand what the Common law is and that is clear from your post and the examples that you have given. It is a system whereby law is created via usually binding precedent and is characterised by adversarial court proceeding.

#3

England’s common law tradition means that decisions of courts are binding if the same question is again before a court. Contrast it with a civil system such as Scotland. A Scottish court should decide an issue by first consulting Scotland’s collection of civil laws. The court can review prior cases as persuasive precedent. On of the big things the English common law gives us is the weight we apply to prior decisions.
There are areas of law where common law provides the substance, but England has had a monarch or parliament to enact statutes. If you repealed all the statutes, you would find important gaps that the common law doesn’t fill.

#4

The origins of the common law start with Henry II who was appalled that a day’s journey might subject a man to differing laws than the ones he fairly knew about. Sensing that this was unfair, he decided that England would need a fundamental set of laws which were common to all of England, and so he made it.

In addition to the statutes that Henry II passed that were to cover all jurisdictions in England, judge-made law and the doctrine of stare decisis also entered the picture and became part of the 'common law."

Additionally, some fundamental documents such as Magna Carta and the Declaration of Rights are seen as included in the “common law.”

#5

You have confused the principle of precedent. There two kinds: Binding precedent, or persuasive precedent.

Binding is self-explanatory–a lower court MUST follow such a precedent. Persuasive precedents are not binding, but nevertheless you may attempt to persuade a court to adopt the same reasoning or result or both, and they might. Or not. Saying “this is a persuasive precedent” can be misleading. It means not that the precedent at hand is in fact superior in reasoning or result. It would generally mean that you can attempt to persuade the court with it. Unless the speaker didn’t know what he was talking about, ha ha, which makes it tricky.

Further muddying matters up, a court may say a non-binding precedent is persuasive, and actually mean they are persuaded by it successfully. Look to context to figure it all out.

#6

This O.P. is a non-starter. It is not possible to repeal U.K. statutes to revert to the common law because you are repealing the common law itself by repealing the statutes.

In the U.K. the common law grows daily. However, in the U.S. it froze as it was when we adopted the Constitution, that is, unless the constitution or a statute modified it.

Perhaps you could modify your O.P. to this:

If the United States repeals the constitution and all statutes, ordinances and regulations so that we are left with the English common law as it existed in 1787, could the United States function in a meaningful sense?

#7

No, I didn’t confuse them. I’ll agree that you used more words to describe binding precedent, but my point was to contrast English and Scottish law.

#8

You said:

Forgive me if I presumed confusion. But this kind of statement only muddies it up, and we are here to fight ignorance, eh?

#9

That would leave us with the common law as described in Blackstone’s Commentaries. Not desirable.

#10

If I said it applied to England, you would be correct. I said it applied to Scotland.

#11

No, perhaps not although I can think of a couple points I’d like to return to; but overall, I think not.

But the question would be if we could “function in a meaningful sense?”

We probably could, though it would be functioning in a way we are unaccustomed to.

#12

If you relied simply on Common Law, wouldn’t it be just about impossible to have a police force?

Their authority comes from Statute Law, not Common Law.

#13

U.S. Federal and state courts have modified the common law as well. The change of most states from the doctrine of contributory negligence to comparative negligence is one example.