Page | 1

SAN BEDA COLLEGE ALABANG-SCHOOL OF LAW

LEGAL PHILOSOPHY

Atty. Rochelle Yvette Dacanay-Galano

RAVAGO, DANISE A.

PRIETO, VALENTIN M.

REPORT ON COMMON LAW

DEFINITION

HISTORICAL BACKGROUND

CONNOTATIONS OF COMMON LAW

DOCTRINE OF PRECEDENT

LAW OF EQUITY VS COMMON LAW

PLACES OF APPLICATION

COMMON LAW DISTINGUISHED FROM CIVIL LAW

COMMON LAW IN THE PHILIPPINES

COMMON LAW MARRIAGES

PLEADING AND EVIDENCE

COMMON LAW

Page | 2

DEFINITION OF COMMON LAW

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

BRIEF HISTORY OF COMMON LAW

Before the Norman Conquest, different areas of England were governed by different systems of law, often adapted from those of the various invaders who had settled there. This became roughly Dane law in the north, Mercian law around the midlands and Wessex law in the south and west. The king had little control over the country as a whole, and there was no effective central government.

In 1066 when William the Conqueror gained the English throne he established a strong central government and began to standardize the law. Representatives of the king (‘itinerant justices’) were sent to check the administration in the countryside and adjudicated local disputes in accordance to local laws. When they returned to Westminster they discussed the different laws which were present around the country and decided which ones to keep and which to dismiss.

By about 1250 a ‘common law’ had been produced which ruled the whole country. This was exported around the world to many Commonwealth countries.

CONNOTATIONS OF COMMON LAW

Common law has three main connotations as opposed to other kinds of legal systems. First, common law is enacted usually from cases decided by the presiding judges as statutory laws come from the legislature and regulatory laws promulgated by the executive branch’s agencies pursuant to delegation of the rule-making authority by the legislature. This can be further differentiated into pure common law and interstitial common law.

Pure common law arises from the traditional and inherent authority of courts to define law, even in the absence of an underlying statute. Examples are modern contract law and the law of torts.

Interstitial common law consists of court decisions which analyse, interpret and determine the fine boundaries and distinctions in the law promulgated by other bodies. This body of common

Page | 3

law includes a judicial interpretation of the US Constitution, for example, legislative statutes, and/or agency relations, and involves the application of law to the specific facts of a matter.

As opposed to civil law systems, common law heavily weighs on court decisions which are considered law with the same force of law as statutes. Common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean. On the contrary, in civil law systems, the courts lack the authority to act when there is no statute, and juridical interpretation is given less weight (meaning that a judge deciding in a case has more freedom to interpret the text of a statute independently) and scholarly literature is given more. The Napoleonic Code of the 1st French Empire, for example, expressly forbade French judges from pronouncing, by way of general and legislative determination, on the causes submitted to them.

Common law and equity are differentiated by the latter’s allowing of courts to use their discretion to apply justice in accordance with natural law. Before 1873, England had two parallel court systems: the courts of law that could only award money for damages and recognized only the legal owner of property, and courts of equity (courts of chancery) that could issue injunctive relief and recognized trusts of property. The two courts have been merged ever since. That practice had spread to the colonies, including what would become the United States of America. For most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Even before the separate courts were merged, most courts were permitted to apply both law and equity, though under potentially different procedural law. The distinction between common law and equity remains important today when a case involves issues such as 1) categorizing and prioritizing rights to property; 2) in the United States, determining whether the Seventh Amendment’s right to a jury trial applies or whether the issue will be decided by a judge; 3) the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review; and 4) the remedies available and rules of procedure to be applied.

DOCTRINE OF PRECEDENT

With the establishment of the court system under Henry the II, the judge’s decision became recorded in law reports—by this system the doctrine of precedent developed

Doctrine of precedent (Stare Decisis) means that in deciding a particular case, the court must have regard to the principles laid down in earlier reported cases on the same or similar points

Page | 4

It distinguishes the common law from civil-law systems. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

LAW OF EQUITY VS COMMON LAW

Equity began as a response to the rigid procedures of England's common law courts. Through the development of common law, a system of accepting and deciding cases based on principles of law shaped and developed in preceding cases, pleading became quite intricate, and only certain causes of action qualified for legal redress. Aggrieved citizens found that otherwise valid complaints were being dismissed for failure to comply with pleading technicalities. If a complaint was not dismissed, relief was often denied based on little more than the lack of a controlling statute or precedent.

Frustrated plaintiffs turned to the king, who referred these extraordinary requests for relief to a royal court called the Chancery. The Chancery was headed by a chancellor who possessed the power to settle disputes and order relief according to his conscience. The decisions of a chancellor were made without regard for the common law, and they became the basis for the law of equity.

Equity and the common law represented opposing values in the English legal system. The common law was the creation of a judiciary independent from the Crown. Common-law courts believed in the strict interpretation of statutes and precedential cases. Whereas the common law provided results based on years of judicial wisdom, equity produced results based on the whim of the king's chancellor. Common law judges considered equity Arbitrary and a royal encroachment on the power of an independent judiciary. Renowned seventeenth-century judge John Selden called equity "a roguish thing" and noted that results in equity cases might well depend on the size of a chancellor's foot.

Despite this kind of opposition, equity assumed a permanent place in the English legal system. The powers of the Chancery became more defined; equity cases came to be understood as only claims for which monetary relief was inadequate. By the end of the seventeenth century, the chancellor's opinions became consistent enough to be compiled in a law reporter.

Page | 5

COMMON LAW; WHERE APPLICABLE

Essentially, every country that was colonized at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonized by other nations.

England and Wales and Northern Ireland in the UK

Ireland

U.S.A. (except Louisiana)

Canada (except Quebec)

Australia

Kenya

New Zealand

South Africa

India

Myanmar

Malaysia

Bangladesh

Brunei

Pakistan

Singapore

Hong Kong

Antigua and Barbuda

Barbados

Bahamas

Belize

Dominica

Grenada

Jamaica

St. Vincent

Granadines

Saint Kitts

Nevis

Trinidad and Tobago

DISTINCTION BETWEEN COMMON LAW AND CIVIL LAW

COMMON LAW CIVIL LAW

Uncodified- there is no comprehensive compilation of legal rules and statutes. it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases

Codified- there are comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense

In a common law system, the judge’s role is to determine the precedents to be applied in the decision of each new case

In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the

Page | 6

case, he or she works within a framework established by a comprehensive, codified set of laws

Uses the ADVERSARIAL SYSTEM- a legal system used in the common law countries where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case

Uses the INQUISITORIAL SYSTEM- a legal system where the court or a part of the court is actively involved in investigating the facts of the case. The judge acts as mediator between the parties where he is expected to take an active role in inquiring from the parties with the aim of bringing them to a settlement.

IS COMMON LAW APPLICABLE IN THE PHILIPPINES?

The Philippines uses elements of both civil law, with its extensive use of legislated and codified law, as well as common law with its reliance on the doctrine of precedent or stare decisis in terms of legal doctrinal development

The civil law operates in areas such as family relations, property, succession, contract and criminal law while statutes and principles of common law origin are evident in such areas as constitutional law, procedure, corporation law, negotiable instruments, taxation, insurance, labour relations, banking and currency. In some Southern parts of the islands, Islamic law is observed.

COMMON LAW MARRIAGES

Both common law marriages and civil law marriages have the objective of procreation, mutual help and protection between the husband and the wife. But the differences here are the strict observance of codified provisions on marriage and family relations in the latter and the case to case basis of judgment in the former. Common law marriages are ratified by the mere living in of the male and female partners (even in some cases homosexual partners). Unlike marriages under Roman law where formalities like solemnization in the authorized presence of a solemnizing officer, oath of the parties getting married and presence of at least two witnesses of legal age, common law marriages can be deemed ratified if the circumstances of the case involving the partners so exist. Here, the couple considers itself as domestic partners with a legal agreement to manage their relationships, obligations or shared assets.

PLEADING AND EVIDENCE

Page | 7

A party asserting a common law privilege has the burden of pressing it by pleading and proving the existence of its elements. In the absence of a statute or rule to the contrary, where a party relies on the common law of another state as declared by the adjudicated precedents of its courts, that law must be substantially pleaded and proved. The party may be required to cite specifically the judicial decisions stating the law of the foreign state. The party may also be required to state the pertinent parts of such decisions and to make a direct reference to where the court’s ruling may be found.

In the absence of proof to the contrary, the common law is presumed to be in force in other states which were originally under common law jurisdiction, such as the former colonies of the British Empire, or those which, at the time of their acquisition, were not occupied by an organized and civilized community other than the United States or Great Britain. In the absence of proof of the adoption of the common law, this presumption does not apply as to the law of states whose territory was never under common law jurisdiction and whose system of law was independent of English law in its origin. The resolution of a question of foreign common law is within the exercise of the trial court’s judgment.

In determining what the common law is, the courts may consider as evidence commentaries, decisions of American courts, even though contrary to English decisions, and English decisions rendered before the adoption of the common law. The opinion of the Supreme Court of one state on a question controlled by the law of another state is inadmissible as evidence of the law of that other state.

The common law of another state or country may be proved by parol evidence by competent witnesses, such as by the oral testimony of persons who are shown to be familiar with its jurisprudence, by its reported cases or by commentaries, but these are only evidence and are not the law itself. It requires but slight proof to establish the fact that the common law prevails in a particular state.

REFERENCES:

Page | 8

Legal Philosophy For Filipinos: A Case Study Approach by Gil Marvel P. Tabucanon http://labspace.open.ac.uk/mod/resource/view.php?id=415819 http://legal-dictionary.thefreedictionary.com/Common+law http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html http://www.economist.com/blogs/economist-explains/2013/07/economist-explains-10 Code of Napoleon, Decree of March 5, 1803, Law 5.

http://www.napoleon-series.org/research/government/code/book1/c_preliminary.html Article 8, New Civil Code of the Philippines. (2011 edition). Rex Bookstore, Inc. Rule 2, American Civil Procedure. http://www.law.cornell.edu/rules/frcp/rule_2 Friedman, Lawrence Meir (2005). A History of American Law (3rd ed.). New York: Simon and

Schuster. http://commonlawgrandjury.com/common-law.htm http://admiralty.uslegal.com/bases-of-admiralty-law-and-jurisdiction/cases-on-admiralty-

in-law-and-equity/ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York:

Oxford University Press Seventh Amendment to the United States Constitution.

http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 Sta. Maria, Melencio. Persons and Family Relations (2010). Manila: Rex Bookstore, Inc. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983 (Oklahoma, 1994), cited

in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing. Zemman v. Canton State Bank, 211 N.W. 2d 346 (Iowa, 1973), cited in Corpus Juris

Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing. Musser v. Musser, 281 Mo. 649, 221 S.W. 46 (Missouri, 1920), cited in Corpus Juris

Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing. Klaiber v. Frank, 9 N.J. 1, 86 A. 2d 679 (New Jersey, 1952), cited in Corpus Juris Secundum

Vol. 15A (2002). Eagan, MN: Thomson West Publishing. Litsinger Sign Co. v. American Sign Co., 11 Ohio St. 2d. 1, 40 Ohio Op. 2d 30, 227 N.E. 2d 609

(Ohio, 1967), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (Arkansas, 1949), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Krouse v. Krouse, 48 Ind. App. 3, 95 N.E. 262 (Indiana, 1911), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Bank of Loretto v. Bobo, 37 Ala. App. 139, 67 So. 2d 77 (Alabama, 1953), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Howard v. Howard, 200 N.C. 574, 158 S.E. 101 (North Carolina, 1931), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Page | 9

Britain S.S. Co. v. George E. Warren Corp., 22 F. Supp. 197 (D. Massachusetts, Federal report, 1938), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

Central Consumers Co. v. Ralston, 202 Ky. 94, 250 S.W. 67 (Kentucky, 1923), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.

St. Nicholas Bank v. State Nat. Bank, 128 N.Y. 26, 27 N.E. 849 (New York, 1891), cited in Corpus Juris Secundum Vol. 15A (2002). Eagan, MN: Thomson West Publishing.