# What's the Big Deal About English Common Law? **URL:** \ **Category:** Great Debates\ **Created:** [January 27, 2021, 9:39am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592 "2021-01-27T09:39:34Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [January 27, 2021, 9:39am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/1 "2021-01-27T09:39:34Z")
I live in Michigan. And in Michigan, the English Common Law system is the default law and rule system, for any problem or controversy that may come up. I think states that have this system in place, actually pass a law that says (more or less): _The English Common Law, insofar as it is not repugnant to the laws of Michigan, and insofar as it is not repugnant to the Constitution of the United States, and insofar as it is not repugnant to the Constitution of Michigan, shall be the law of the land…_ What’s the big deal about this system? And moreover, why is it even considered a good thing? English Common Law is brutal. Women had no rights. Gays were burned alive. Traitors were drawn and quartered. Why is this a good thing? And why can’t they just do like they do in France and other places? Carefully write down all the laws and procedures you think you may need some day. Don’t just sign on to a whole system, you probably know very little about to begin with. Am I wrong? And so, why do they do this? 🙂 ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [January 27, 2021, 12:28pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/2 "2021-01-27T12:28:12Z")
I’m not a lawyer or legal historian but as a citizen, I understand the point of English Common Law to be its flexibility and adaptability, balancing precedent against changing common perceptions of what is right in principle, case by case, without trying to enshrine everything in a uniform code, which could so easily become a straitjacket. The text you quote looks to me like a backstop: “if there’s anything we’ve forgotten to write into law, this is the standard it should be judged by”. That all the horrible things you list were held to be acceptable in the past doesn’t make them applicable now, precisely because common law has evolved with the times: precisely because it isn’t a “whole system” in the way a single code would be. But I may be wrong. ---
**Author:** ![ZosterSandstorm](https://avatars.discourse-cdn.com/v4/letter/z/e0b2c6/32.png) [@ZosterSandstorm](https://boards.straightdope.com/u/ZosterSandstorm)\ **Post date:** [January 27, 2021, 12:45pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/3 "2021-01-27T12:45:29Z")
> [@Jim\_B](#): > > Gays were burned alive. Just for technical accuracy’s sake, during the days of executions for sodomy in England, the method used was hanging, and this was derived from [statute](https://www.bl.uk/lgbtq-histories/articles/the-men-killed-under-the-buggery-act), not common law. Burning was used as the method of execution for two crimes in England: Heresy by anyone, and treason by women. Note that “treason” had a much broader definition in pre-Victorian English law than it does in the modern era and encompassed any kind of “betrayal” of a superior. The last woman burned alive was a servant girl punished for killing her employer. ---
**Author:** ![SanVito](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sanvito/32/2805_2.png) [@SanVito](https://boards.straightdope.com/u/SanVito)\ **Post date:** [January 27, 2021, 12:53pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/4 "2021-01-27T12:53:04Z")
I am not a lawyer. But English Common Law doesn’t mean sticking to laws and judgements that our medieval forefathers thought were acceptable - our lawmakers can change the law whenever they like. It’s basically, as I understand it, about making judgements based on precedent where the written law is unclear, or two parties can’t agree on how to interpret the law. So the judge will look to past judgements for guidance. I now await my betters to tell me I’ve got it completely wrong. ---
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [January 27, 2021, 4:21pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/5 "2021-01-27T16:21:01Z")
@ZosterSandstorm I did see an old woodcut of gays suffering this fate. But I don’t have a cite at the moment. Also when I used to loiter at U of M Dearborn (they had a lovely book collection that I liked), I once read a copy of the Encyclopedia Britannica, from the 1700’s. And it did say ‘custom’ IIRC had the punishment for sodomy for burning alive. I don’t know if they were still doing such a thing in the 1700’s. Again I at least have no cites. Does anyone have a copy of the text of the Encyclopedia Britannica? And from the 1700’s? Thank you in advance 🙂 . ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 27, 2021, 4:29pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/6 "2021-01-27T16:29:16Z")
Civil concepts like “proximate cause,” “negligence,” and “duty” are usually not found in statutes. (Exceptions exist). The develop over time from court decisions. They evolved from English common law (as opposed to the French system, for example, which is more influential in Louisiana). If you read appellate decisions from the early 1800s, you’ll see English authorities cited. That’s extremely rare now. ---
**Author:** ![GreenWyvern](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/greenwyvern/32/2834_2.png) [@GreenWyvern](https://boards.straightdope.com/u/GreenWyvern)\ **Post date:** [January 27, 2021, 4:39pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/7 "2021-01-27T16:39:53Z")
Burning alive for sodomy did occur in various European countries, but not in Britain. So it has nothing to do with Common Law. > **[Death by burning](https://en.wikipedia.org/wiki/Death_by_burning#Legislation_concerning_%22crimes_against_nature%22)** > > Pages for logged out editors learn more > > > Death by burning (also known as immolation) is an execution, murder, or suicide method involving combustion or exposure to extreme heat. It has a long history as a form of public capital punishment, and many societies have employed it as a punishment for and warning against crimes such as sedition, treason, heresy, and witchcraft. The best-known execution of this type is burning at the stake, where the condemned is bound to a large wooden stake ... ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 27, 2021, 5:23pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/8 "2021-01-27T17:23:54Z")
Notice how it is written: > [@Jim\_B](#): > > English Common Law, _ **insofar as it is not repugnant to the laws of Michigan, and insofar as it is not repugnant to the Constitution of the United States, and insofar as it is not repugnant to the Constitution of Michigan** _ So that in itself tells us that the laws of Ye Olde Days do **not** become part of Michigan law unless the US/Michigan Constitutions actually _allow it_. And as mentioned many of Ye Olde Laws were not even part of the Common Law at independence anyway, but were _criminal statutes_ since legislatively repealed. So Common Law applying in Michigan would be understood as principles and references to be used in making civil judgements on anything _where there is not already a clear Michigan statute_ or a constitutional mandate or prior case decision on the matter. > [@Jim\_B](#): > > And why can’t they just do like they do in France and other places? Carefully write down all the laws and procedures you think you may need some day. Don’t just sign on to a whole system, you probably know very little about to begin with. Because most of the USA has a legal system evolved from the preexisting English system (with a couple of exceptions), on to which we added written constitutions and a homegrown system of statute and case law, largely replacing or overriding or radically changing preexisting laws but following on from them. ISTM on that last bit, would suggest we can presume the lawmakers or constitutional framers who “signed on” _were_ familiar with what they were talking about. On the other hand, they also were cognizant enough of their humanity to realize that the best attempt to “carefully write down all the laws and procedures you think you may need some day” would still be doomed to miss **something** so you needed a backstop. In the United States’ components’ legal systems, two jurisdictions IIRC, Louisiana and Puerto Rico, make use of Civil Code systems, in which what is not clearly covered by a specific civil statute (or prior case law) has to refer to whatever _general case_ is addressed in the Civil Code – it may be extensive but still is not an absolute list of every conceivable possible individual legal situation or question. ---
**Author:** ![GreenWyvern](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/greenwyvern/32/2834_2.png) [@GreenWyvern](https://boards.straightdope.com/u/GreenWyvern)\ **Post date:** [January 27, 2021, 5:39pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/9 "2021-01-27T17:39:33Z")
"A country is in a bad state, which is governed only by laws; because a thousand things occur for which laws cannot provide, and where authority ought to interpose."       – Samuel Johnson ---
**Author:** ![Moreau](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Moreau](https://boards.straightdope.com/u/Moreau)\ **Post date:** [January 27, 2021, 6:09pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/10 "2021-01-27T18:09:38Z")
Off the top of my head, historically, Common Law was important in that it relied on precedence and custom. This could protect the common man against the local lord arbitrarily changing the rules from the local custom. For instance, the serf had the right to collect fallen branches from the lords forest to use as firewood. The local lord couldn’t just start making the serf pay for it with cash or more labor. I did find this explanation of the modern advantages and disadvantages. > **[Common law - advantages and disadvantages](https://lawgovpol.com/common-law-advantages-disadvantages/)** > > Like most aspects of law, common law - law made by the courts rather than parliaments - has advantages and disadvantages. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [January 27, 2021, 6:19pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/11 "2021-01-27T18:19:53Z")
Just to add a footnote, and a concept that might not have made its way across the Atlantic: IIRC, it used to be said that, in common law cases, judges should apply as a standard what “[the man in the Clapham omnibus](https://en.wikipedia.org/wiki/Man_on_the_Clapham_omnibus)” would consider reasonable, in all the given circumstances ---
**Author:** ![naita](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/naita/32/5862_2.png) [@naita](https://boards.straightdope.com/u/naita)\ **Post date:** [January 27, 2021, 7:32pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/12 "2021-01-27T19:32:17Z")
> [@Jim\_B](#): > > Don’t just sign on to a whole system, you probably know very little about to begin with. When they signed on to that whole system it wasn’t one they knew very little about, and it covered a lot of what they thought they’d might need some day. Of course Michigan could have gone another route, but they’d only been “not English” for a few decades, and previous states had gone that way, what with them being even closer in time to actually having been English. It’s not that it’s such a great system, but in a new nation that grew out of mainly English colonies it was the system everyone knew, just like new French law was built on older French law and Norwegian laws were built on older Norwegian law (although my ancestors generally did write everything down all they laws they thought they needed a lot of those laws were just copies of the old ones.) ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [January 27, 2021, 9:50pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/13 "2021-01-27T21:50:07Z")
Don’t forget that it’s not like they schemed up the legal system from whole cloth either; all the lawyers and judges were presumably trained in common law in other states or even England if you go back far enough. I suspect that’s really the reason- when the Colonies or the US itself got to the point that it needed a legal system, the lawyers and judges involved in the process were all common law trained, and just continued what they knew. Likewise in Louisiana, the lawyers and judges were all trained in the French system, so they just continued what they knew. Chances are if you were to start a colony on another planet with mostly American colonists, that colony would have something awfully close to common law, because presumably whatever lawyers shipped out are familiar with it. That’s not saying they wouldn’t change some things, but they’d probably set something up pretty close to what they knew here. ---
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [January 27, 2021, 10:44pm UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/14 "2021-01-27T22:44:19Z")
If it was possible to write all necessary laws in a clear and unambiguous way, it would render a lot of lawyers out of work. ---
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [January 28, 2021, 6:20am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/15 "2021-01-28T06:20:05Z")
@GreenWyvern Okay, I don’t want it to be said I don’t provide cites. So here it is, a Xerox of the Encyclopedia Britannica, from my personal notes. Please read: _Encyclopedia Britannica; OR, A DICTIONARY OF ARTS and SCIENCES, COMPILED_ yadda yadda yadda. You get the picture. But read this entry (from the ancient encyclopedia, 1768 A.D. (?)): \*SODOMY, the unnatural crime of buggery, thus called from the city of Sodom, which was destroyed by fire for the same. The Levitical law adjudged those guilty of this execrable crime to death, and the civil law assigns the same punishment to it. Our law also makes it a felony. There is no statute in Scotland against sodomy; the libel of the crime is therefore founded on the divine law, and practice makes its punishment to be burning alive.\* That is the whole article for the word. What did I misunderstand 🙂 ? ---
**Author:** ![GreenWyvern](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/greenwyvern/32/2834_2.png) [@GreenWyvern](https://boards.straightdope.com/u/GreenWyvern)\ **Post date:** [January 28, 2021, 7:07am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/16 "2021-01-28T07:07:09Z")
Page images of full Encyclopaedia Britannica of 1771 are available online [here](https://digital.nls.uk/encyclopaedia-britannica/archive/144133900). (The first volume was published 1768, the last in 1771.) What you’re missing is that " the civil law assigns the same punishment to it." Civil Law is the system used in much of Continental Europe, as opposed to Common Law. It can’t mean ‘civil law’ as opposed to ‘criminal law’, because sodomy was a criminal offense. The entry continues “our law also…”, making it clear that it is referring to the law system of the Continent, not to ‘our law’. From the same Encyclopaedia Britannica: [![Imgur](https://i.imgur.com/suVxek9.jpeg "imgur.com") ](https://imgur.com/suVxek9) See also: > **[Civil law (legal system)](https://en.wikipedia.org/wiki/Civil_law_(legal_system))** > > Pages for logged out editors learn more > > Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the law in common la... ---
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [January 28, 2021, 7:08am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/17 "2021-01-28T07:08:41Z")
Edit: BTW I didn’t read all the way down the page of the first Xerox. It was apparently printed in 1771 (_not_ 1768). Go figure. Off-topic: Does anyone know where you can buy a modern copy of the 1771 Encyclopedia Britannica? I’d love to have one, though it is probably ridiculously expensive. Carry on 🙂 . ---
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [January 28, 2021, 7:13am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/18 "2021-01-28T07:13:30Z")
@GreenWyvern Whoops! Double posts. Yeah, I should have read the article more carefully. Sorry. Okay, I’m game then. So what was the penalty for gay sodomy in ancient England? My law dictionary says drawing and quartering was the punishment for any _atrocious_ crime (in their opinion at least). Was it drawing and quartering? ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [January 28, 2021, 7:44am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/19 "2021-01-28T07:44:59Z")
> And why can’t they just do like they do in France and other places? Carefully write down all the laws and procedures you think you may need some day. Good luck with that. I’ve run cases in France. Their laws are (unsurprisingly) not comprehensive. Life is near-infinitely complex and continually throws up situations that don’t fit neatly within the contemplation of statutes. A large part of practice of law is figuring out where to go when the maps run out. It’s amazing how often you reach that point. ---
**Author:** ![GreenWyvern](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/greenwyvern/32/2834_2.png) [@GreenWyvern](https://boards.straightdope.com/u/GreenWyvern)\ **Post date:** [January 28, 2021, 7:50am UTC](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592/20 "2021-01-28T07:50:55Z")
> [@Jim\_B](#): > > Was it drawing and quartering? No, it was usually imprisonment. You can look at the records of cases on the [Old Bailey Online](https://www.oldbaileyonline.org/) site, which has searchable records of nearly 200,000 trials at the London central criminal court from 1674-1913. It’s an interesting site to browse, because you can read the accounts of individual cases. There were 1072 cases of sodomy during this period – an average of 4.5 cases a year, out of a total of about 830 cases a year, about 0.5%. ### [Search results for cases of sodomy](https://www.oldbaileyonline.org/search.jsp?gen=1&form=searchHomePage&_offences_offenceCategory_offenceSubcategory=sexual_sodomy&start=0&count=0) _Click ‘Refine this search’ at the top right to narrow down results._   724 out of those 1072 cases (67%) resulted in guilty verdicts. Of the guilty verdicts: - 598 (82%) resulted in imprisonment. - 58 (8%) resulted in death by hanging There were no sentences of death by burning, or drawing and quartering. [Next page](https://boards.straightdope.com/t/whats-the-big-deal-about-english-common-law/931592.md?page=2)