Anglo-Saxon and Continental legal systems – key differences and surprising similarities

Everyone believes that Anglo-Saxon system of law is totally different and based on totally different premises than “continental “ one and is deeply surprised by various comparisons and similarities which emerge when one starts to analyse it and to compare various judicial institutions and legal concepts.

Basics of Anglo-Saxon system of law

Very few people know nowadays who Saxons were and when they lived – and if someone dares to say that ”presumably they must have lived in very early Middle Ages“ as inhabitants of some island then referred to as Britannia this is regarded as the brave and almost scientific answer. If some adds that there were some “ rumours” that Romans lived in that island as well and that this is them who built Hadrian wall to protect themselves for raids of wild Celts from present Scotland – people start to disbelief . and if someone dares to mention that present London at that time was called “Londonium” – people look in amazement . If someone on top of that will add that sometimes in the XI century there was a famous battle of Hastings and after that Normans settled in that island called Britannia – people normally link it in their mind with Robin Hood although this popular hero allegedly lived more than almost 200 years later and came from aristocratic well settled in the area Norman family .

Common law

Most of people know however that this legendary country Britannia had something like : “common law “ which meant law based on judicial decisions issued by individual judges in relevant courts in the past – and most people know that such judges started to be visible and operate “more or less “ in Robin Hood times – but only few know that basically whole system started after “The Great Charter “ Magna Carta Libertatum “ was passed by King Jan ( without the Land ) in 1215 – when his barons rebelled against his rule and too heavy taxes levied for no reason and judgments which were atrocious and passed on the basis of false testimonies and appliance of any common uniform criteria and imprisonment without any cause .

Since that time the set of basic “ common “ and “ reasonable “ and “ just “ rules was clearly listed listed in the Great Charter and this date and this document is commonly regarded as the basis of universal modern predecessor of present Anglo Saxon system of law . Most people believe that this is a type of legal system characterized by the “ lack of separation of the application of law “ and the conscious and deliberate basis of legal norms and just court decisions on previous precedents – but in realty all these court decisions from that time must have been compliant with basic set of rules set out and defined in the Great Charter and follow the lines set out in the Charter.

How did these principles arise – were they totally new ? and not acceptable by people and artificially imposed by the Great Charter ? Again surprise may come as : No – as these principles and rules basically mirrored the concepts of what was then commonly regarded as equal , fair , and just and socially acceptable and mostly they referred back to legal Roman concepts of law from the times of Londonium and Hadrian wall built by the Romans to protect civilisation from the “ wilderness” .

Equity law

Thus the concept of “ equity law “ started to become operation in resolution of the disputes between the parties, and the judge should take into consideration not only former existing cases of law but should have been guided by three principles: the principle of conscience, the principle of fairness and the principle of justness. The application of equity principles has only been and still is only possible if the parties have not yet had conflicts with the law, but their rights or claims are conflicting with each other. Thus, this system is perceived as different from the common law which basically since The Great Charter times had always been supposed to observe defined commonly accepted criteria and set of rules .

Therefore, the most important feature of equity law is the lack of fixed set of rules and regulations as well as possibility given to the judge to serve the judgment in accordance with one’s conscience and sense of common sense. Thus this is “ law” or rather a code of ethics similar to 10 biblical commandments which may easily be amended and is flexible.

Similarities and differences between common law and equity law

Both common law and equity law were initially based on Roman law and its concepts and later developed their own interpretations , history and traditions. At present there are many differences between common law and equity law. First of all, equity law was most commonly shaped in civil matters while common law related to civil, criminal and fiscal matters. As mentioned above, the basis for common law ruling is former precedent and custom and set of rules deriving from The Great Charter also regarding “fair” monetary compensation for the wrongful act .

Whereas, in the case of equity law, the judge does not rely on precedents. The basis for the judgement is equity and justice. Another significant difference is that in common law compensation is awarded in civil matters, while in equity law the judgement is limited to determining which party is right and issuing an order or prohibition of a specific action .

There is no jury in equity law, only one judge. Whereas, in common law cases , there is the jury – and it has vital role in the whole proceedings ( as everybody is granted a fair jury trial, especially in criminal cases). The jury decides about potential guilt of the accused in the criminal trials , the role of the judge is to determine the penalty – if the jury finds the accused guilty .

When it comes to the civil proceedings, the jury decides who is right in the dispute and about the amount of due compensation to the injured party , the judge may alternatively reduce the amount of compensation. Despite the large role of the jury in common law, the judge is not insignificant, as he deals with the settlement of cases and the official creation of law – by issuance of his judgments .

The judge also interprets the law as now the common law system has to take into consideration and operate within numerous statutory laws passed especially in corporate , labour and tax areas – and should the statutory law now be different that it formerly had been the judge is obliged to recognise it – even if the conclusion of the case is different than the former precedent based on different law had been . Thus the judge not only issues judgements but sets precedents (not every judgement is a precedent) and deals with interpretation and assesses the compliance of such statutory low with the Constitution (judicial review).

Thus the visible difference in respect of common law and equity law is the partial codification of laws in equity law, while there is no official codification in common law system as such codes like eg. Civil Code or Commercial Code do not exist and the system is based on detailed records of specific factual situations and their interpretation in the light of existing statutes and appropriate qualification and thus appropriate judgment .Nowadays Common law sometimes provide guidelines and inspiration for the new legislation to be prepared and passed – similar to the motives of creation of the Great Charter in 1215 .

Precedents ’s role

A ”precedent “ known also as “ stare decisis ” – especially in US , in principle is a track record and history of judicial decisions from the past regarding factually similar cases and basically is used as basis of evaluation and interpretation of current case and of future cases . The judge decides which precedents apply to the current case he is dealing with – and thus every lawyer appearing in the court in UK or US must know the list of former precedents which may apply to the current case and must be able to show similarities or differences – and this manner of application of law is often regarded as common law – as it is supposed to guarantee stability and uniform line of judicature . Precedent (from Latin – praecedens – preceding) is a judgement that may affect the content of judgements given in subsequent cases.

In common law, precedential law is created on the basis of court judgements. The Anglo-Saxon precedent consists of two elements: ratio decidendi and obiter dictum. Ratio decidendi refers to main grounds for the choice of the specific decision and impacting proposals for settling/ deciding upon legal issues, while obiter dictum refers to proposals for settling/ deciding upon legal issues “ within judge’s competence and his motives for free , just and unbiased assessment of the case“ and the choice of proper reasons for final decision .

Thus “ ratio decidendi “ is in principle the precedent rule and reasons , which then served as the legal basis for dealing with similar cases in the future. It is binding on the lower courts and the courts of appeal which established it as long as it is not annulled. However, this principle is not binding on the Supreme Courts. The binding rules are set out in details in the stare decisis principle and vary from one state to another and from part of the United Kingdom. In turn, obiter dicta, although they do not have binding force, constitute valuable help for subsequent judges and when they come from the highest courts, they actually influence the shape of the future law. Precedents may shift, change or even be entirely overturned over time, though that last case is very rare.

Common law is created by courts on the basis of a precedent, and opposed to established law (statutory law ) . This does not mean a total exclusion of statutory law, however; the courts narrowly interpret the statutory law as they prefer to follow former precedents – as they have former “ ratio decidendi “ and “ obiter dicta” as guidelines .

It should be noted that common law and equity law do not apply throughout whole territory of Great Britain – as Scotland and Jersey have separate jurisdictions – not to mention other Commonwealth countries where the Queen still rules as the official Head ( Australia and Canada ) nor they apply throughout the United States , as Federal statutory law has its basically priority and there are states where slightly modified Napoleonic Code (Louisiana) is still basically in force .

Judicial system

Common law and equity law started from totally different grounds but with time passing they started to converge with each other and in fact have been merged into one legal system by the Supreme Court of Judicature Acts 1873-1875.

This law is quite an important legal act – often compared to the Great Charter as it introduced the notion of the Supreme Court to the Anglo- Saxon system judicial system and the Court of Appeal. The Supreme Court has been divided into five faculties by the abovementioned Act:

The Court of Exchequer – The Tax Court

The King’s Bench Court – The Royal Bench Court

The Court of Common Pleas – The Court of Common Affairs

The Chancery division – Chancellery Department, which dealt with economic affairs, real estate, industrial property matters and commercial companies

The Probate, Divorce and Admiralty division – Department for family and guardianship as well as maritime affairs Almost all matters regarding companies, commercial, business, family, inheritance, labor law are regulated by statutory law .

Conclusions

Thus any person coming from UK and US to the Old Continent can be surprised by similarities which exist on “ The Old Continent “ with the concepts and basic principles they know and follow in their home countries although under other “ labels “ .

This arise from the fact that In the Old Continent uniform system of courts started to exist from Napoleonic times and practically all legal systems – irrespective of the country – are in majority based on Napoleonic Code principles and most of Commercial Codes in existence follow German commercial code in respect of their principles – but there should not be such surprise for the lawyers from UK and US as Napoleonic Code followed Roman rules of law – similarly like the Great Charter . These similarities will play even greater role now after Brexit as provisions of Lisbon treaty will cease to apply to UK and at present it is not even sure whether provisions of Rome I and Rome II conventions on dealing with civil , commercial public and private matters will still be binging in order to simplify proceedings in the other country.

Authors: 

Beata Ordowska
Adwokat Komplementariusz
TGC Corporate Lawyers

Patrycja Kula
Assistant
TGC Corporate Lawyers

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