Reflections on the Common Law - Relating It to the European Context

Auszug

The expression ‘common law’ has a number of different meanings.¹ Most immediately relevant here is the reference to a legal tradition or culture which is part of the broader family of western law (together with the Romanic and Scandinavian traditions) and which has its origin in England. We thus often refer to the ‘English common law’ but this label should be used with caution: although originating in England, the ‘English’ common law is now one of the world’s most widespread legal traditions, whether considered in terms of the number of countries or size of populations subject to a legal order in some way derived from this original tradition.² Thus the common law can no longer be thought of as ‘English’ law (see, e.g., Cooke 2004: 273-274), neither in the sense that it is restricted to that location, nor in the sense that it is law made there to be applied in other places (as was the case in the days of British colonialism). The ‘common law’ can be found in some form or other, subject to some qualifications, throughout, for example, the United States of America, Canada, Australia, New Zealand and India, as well as in the United Kingdom.³ This geographical spread, the times and circumstances under which it has taken place and the nature of geopolitical and other developments since the first introduction or ‘reception’ of the common law in those countries means that considerable caution is required when speaking about the common law. In othxer words, there are many legal systems of the common law, and each has its own special characteristics which mark it off even from the other jurisdictions within this overall tradition. (For particular jurisdictions, see, e.g., Abadinsky 1998; Abernathy 1995; v. Bernstorff 2000; Burnham 1995; Dörrbecker/Rothe 2002 and 2003; Hay 1995; Morrison 1994; v. Mehren 1988.)