You are here:   Features > Will the genius of the common law survive?

The working method of the French Cour de Cassation provides an example: modelled on the Aristotelian syllogism, it proceeds by way of major premise (statement of law); minor premise (statement of fact); conclusion. The judgments of the Court of Justice of the European Union adopt what Lord Mance calls the “uniform and colourless style we associate with the civil law”. They set out the facts and the law with only terse reasoning, often repeating without elaboration some previous statement of the Court, which is said to govern the present case. Overt dissent is not permitted. The disadvantages in this approach identified by Lord Mance include obscurity; a committee-style process discouraging individual engagement; a lack of nuance and contrast which is prejudicial to future legal development; and a want of transparency. (It is right to say, however, that this committed internationalist also identified countervailing advantages). German judges favour strewing their judgments with strings of indigestible paragraph references, of course called Paragraphenketten. Judgments in the German Supreme Court are typically written before the hearing, and oral advocacy there (and in France) is often little more than a formality.

Although Lord Goff acknowledged the ability of continental systems to produce judge-made law (e.g. the development in Germany of a right to privacy, which did not become part of English law until after the passing of the Human Rights Act 1998) he expressed himself pungently about the contrast in method: “Our judgments tell the truth”; they “are not written in code like the French judgments”. Part of this process of truth-telling is in the ability of the English judge sitting as one of a court of three or five (occasionally more, in important Supreme Court cases) to dissent, i.e. to write a judgment saying that his colleagues have simply got it wrong. What Lord Goff called a “liberation” is on the continent an “anathema”. Some English law dissents have become famous in their own right, such as Lord Atkin’s impassioned refusal to permit war-time detention on the Home Secretary’s mere say-so, in Liversidge v Anderson (1941). Others have become adopted as orthodox, because later judges realised the error of the earlier majority’s thinking. Unsurprisingly, the most famous post-war example involves the vindication in 1963 by the House of Lords of a 1951 dissent in the Court of Appeal by the most celebrated judge of the 20th century, Lord Denning.

As for the innumerable historical achievements of English judge-made law, one might single out, first, the early development of a coherent law of trusts (a concept which is still absent in many legal systems, although its roots in England lie as far back as the Crusades); secondly, the evolution of the entire law of obligations, both voluntarily assumed (as in the law of contract) and involuntarily incurred (as in the law of tort, which includes negligent actions or statements). A third remarkable development, beginning in earnest in the 1960s, was the entire body of remedies available to individuals seeking to challenge decisions taken by governmental and public bodies, now exercisable through an application for judicial review.
View Full Article

Post your comment

This question is for testing whether you are a human visitor and to prevent automated spam submissions.