Worth mentioning that the records of the Old Bailey site can be misinterpreted in a way that suggests people were executed when actually they were not.
Yes, that’s an excellent point. Death sentences were very often commuted to imprisonment or transportation.
Of the 58 people sentenced to death for sodomy in London in that 239 year period, it’s not clear how many were actually executed.
It’s also worth mentioning that homosexuality in Victorian public schools in England was very common. Teachers usually turned a blind eye, and at worst it resulted in expulsion. The same at universities.
Welcome Moreau!
The way right-wing militias use the term “common law” reflects a misunderstanding of what the common law is and what role it plays in our legal system.
First of all, in American legal jargon, the term “common law” has three major meanings, which lawyers and judges usually understand through context.
Second, when we talk about American law being based on common law, we are talking about a system, not specific laws. (“Civil law” also has two major relevant meanings here, again usually understood from context.)
(1) Common law means a system in which judges have the function of interpreting the meaning and application of the law and looking to prior decisions (precedent)—as well as other things— for guidance. In this sense, common law is contrasted with civil law (not civil as in contrast with criminal) or code law systems, which originate from Napoleonic law. In the United States, Louisiana and Puerto Rico have civil law systems. As an American lawyer, my point of view is that the common law system generally works well, and there’s no reason to get rid of it. I’m skeptical that civil law offers any relative benefit.
(2) Most commonly when an American lawyer or judge says “common law,” E is talking about the entire body of judicial decisions that make up the majority of the legal principles. In this sense, “common law” is often used in conjunction with terms and concepts like decisional law, judge-made law, precedential law, black-letter law, case law, and is contrasted with statutory law (law made by legislatures) and regulatory law (law made by executive authorities).
(2) Common law as opposed to equity or chancery law. The American legal system inherited two parallel civil (that is, non-criminal) court systems from England—the courts of (common) law and the courts of equity (chancery courts). The biggest difference is in the remedies available. Law offers mainly monetary damages as a remedy in civil cases. Equity offers mainly injunctions in civil cases. For the most part, the two systems have merged in the U.S.—although a couple of states, one being Tennessee, still have separate equity courts—but the question of whether a civil action is an action in law or equity is relevant with respect to the right to demand a jury trial in federal cases (no right to jury in equity).
The right wing also harps on about the false claim that “judges don’t make law; the only interpret law” while at the same time worshipping English common law, a system in which judges explicitly make law.
They also seem to fail to understand that a common law system is constantly evolving. You don’t freeze the law at some arbitrary point in time and say “the true common law rule for X is from 1703” or whatever. Operating under a common law system does not mean we are bound to archaic standards.
thanks. I have lurked for a long time and though it was time.
(BTW thanks for retaking discussion on actual sunstance of the “why” of the “based on common law” legal structure. Thanks and welcome also to Moreau)
Having lived and worked (as a non-lawyer, but involved at many points in work that affects or is affected by legislation) through 4 decades of adult life in both environments, my experience is that for everyday practical purposes the majority of average persons could not tell under which system they live. Fundamental constitutional rights are fundamental constitutional rights whether in Pontiac or Shreveport, and under both Common and Civil Code systems, both regular statute and case law have kept going as time has progressed to cover specific cases in almost every legal issue an average natural or legal person reasonably expects to run into in the day to day.
( I have heard anecdotally it makes the Louisiana and Puerto Rico Bar exams a royal PITA for lawyers educated elsewhere in the US. I suppose that’s job security for our Law graduates…)
…
(BTW … WTH? Is the Encyclopaedia Britannica, whatevereth edition, recognized as a Law Dictionary source by anyone in the actual legal system?)
Has anybody here claimed that?
The Encyclopaedia Britannica came up because there was a question about an entry there. Since that entry uses the term ‘civil law’, it’s fully appropriate to see what the authors themselves thought it meant.
Makes sense - common law includes a fair amount of codified common sense - for example common law on abandoned property. No point writing a new version of something if it’s already conveniently defined in a lower layer.
I’m not sure that “common sense” is quite the way to put it. Most common law doctrines have a majority and a minority view. For example, in terms of liability, is your jurisdiction a contributory negligence or a comparative negligence jurisdiction? There are usually reasonable arguments on both sides.
At some point, the legislature might want to codify the common law, for several reasons:
(!) there are conflicting court decisions–very common among federal appeals courts–and the supreme court hasn’t ruled,
(2) the supreme court has ruled on the matter, and the legislature disagrees,
(3) the rule has been around long enough to have stabilized and the legislature wants to make sure that there aren’t any deviations.
For example, the fair use doctrine in copyright law developed as common law and was around for decades, but in 1976, Congress decided to put the fair use balancing test explicitly in statute. It’s still a rule that needs significant interpretation in indivdiual cases, and the common law is still evolving, but now every court starts on the same page, at least.
This is an anachronistic critique. It’s about on par with:
“What’s so good about US constitutional law? It allowed for slavery and said Black people could never be citizens. It denied voting rights to women and then allowed for racial based voting rights, through poll taxes and voting tests. Why is it a good thing?”
Every legal system evolves with time. Common law and the US Constitution both have evolved. If you have a specific critique about modern common law, I would love to hear it so we can discuss it.
ETA: Excellent summary of the common law methodology and content, @Acsenray. 
I do not take your opinion lightly, my learned friend.
: blush :
I would agree with that. Civil law in the western European countries and English common law both evolved in similar social and commercial settings, so they operate in similar ways.
The metaphor that I’ve used in the past is that Ford and Renault cars both burn gas and have internal combustion engines. That doesn’t mean that a water pump from a Ford can be substituted into a Renault. But the person driving a Ford or a Renault never has to worry about that kind of technical detail.
William Blackstone, one of the greatest legal minds in history, and one of the greatest defenders of individual rights (“A man’s home is his castle”) was also one of the greatest commentators on common law. He had a HUGE influence on many of the Founding Fathers.
As regards the OP, starting with the previous legal sytem as a basis and making your own changes from there is done everywhere where a country becomes independent. To the best of my knowledge all former English and French colonies had a similar clause in their constiyution when becoming independent in the 20th century. Obviously former English colonies started from common law, and former French colonies started with French civil. law.
It is simply a matter of practicalities. You don’t want to cause a legal vacuum, so you use the previous system as a safety net, which everyone is already accustomed to. There is no judgement as to the quality of common law.
Just as an example, see Ghana:
THE CONSTITUTION OF THE REBUPLIC OF GHANA 1992
THE LAWS OF GHANA
11
(1) The laws of Ghana shall comprise-
(a) this Constitution;
(b) enactment made by or under the authority of the Parliament established by this Constitution;
(c ) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitutions;
(d) the existing law; and
(e) the common law.
(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.
(3) For the purposes of this article, “customary law” means the rules of law which by custom are applicable to particular communities in Ghana.
(4) The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date.
This is a good example.
I think most of the older dominions didn’t have such clauses (Canada doesn’t), because they relied on the doctrine of reception of English law right from the foundation of the colonies.
The Constitution of Ireland (1937) includes a transitional provision (Art. 50) to the effect that “the laws in force in [the Irish Free State] immediately prior to the coming into operation of this Constitution shall continue to be of full force and effect” unless inconsistent with the new Constitution, and subject to subsequent legislative amendment or repeal.
The Constitution of the Irish Free State (1922) had a very similar provision (Art 73) continuing the laws in force at the time that Constitution entered into operation.
Neither article explicitly mentions English common law, but Ireland was in fact the first country to which English common law had been exported, in the late 12th/early 13th century. There doesn’t ever seem to have been a statute of the Irish parliament adopting or affirming common law; it simply seems to have been taken for granted that the extension of common law to Ireland was an automatic corollary of the subjection of Ireland to the English crown. It was another few centuries before political/military developments meant that this extension was effective in practice throughout the country. But nobody was in any doubt, when the 1922 and 1937 constitutions were enacted, that these articles were the basis for the continuation not just of existing statutory law but of the whole corpus of law used in Ireland, including the common law.
That’s the same as the “settled” colonies in Canada: no statute adopting the common law or English statutes of general application. They simply applied by virtue of settlement.
Statutes were needed to adopt English law in Quebec and Ontario, which had formerly been under civil law. English criminal snd public law was implemented for Quebec, while Ontario got the full Monty.