CATEGORIES OF LAW

There are various ways of categorising law, which initially tends to confuse the nonlawyer and the new student of law. What follows will set out these categorisations in their usual dual form whilst, at the same time, trying to overcome the confusion inherent in such duality. It is impossible to avoid the confusing repetition of the same terms to mean different things and, indeed, the purpose of this section is to make sure that students are aware of the fact that the same words can have different meanings, depending upon the context in which they are used

Common law and civil law

In this particular juxtaposition, these terms are used to distinguish two distinct legal systems and approaches to law. The use of the term common law’ in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the US, but many other Commonwealth and former Commonwealth countries retain a common law system. The term ‘civil law’ refers to those other jurisdictions which have adopted the European continental system of law, which is derived essentially from ancient Roman law but owes much to the Germanic tradition.  The usual distinction to be made between the two systems is that the former, the common law system, tends to be case centred and, hence, judge centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts, whereas the latter, the civil law system, tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both of these views are extremes, with the former overemphasising the extent to which the common law judge can impose his discretion and the latter underestimating the extent to which continental judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the European Court of Justice which was established, in theory, on civil law principles, is in practice increasingly recognising the benefits of establishing a body of case law. It has to be recognised, and indeed the English courts do so, that although the ECJ is not bound by the operation of the doctrine of stare decisis it still does not decide individual cases on an ad hoc basis and, therefore, in the light of a perfectly clear decision of the ECJ, national courts will be reluctant to refer similar cases to its jurisdiction. Thus, after the ECJ decided in Grant v South West Trains Ltd that Community law did not cover discrimination on grounds of sexual orientation, the High Court withdrew a similar reference in R v Secretary of State for Defence ex p Perkins

Common law and statute law

This particular conjunction follows on from the immediately preceding section, in that common law’ here refers to the substantive law and procedural rules that have been created by the judiciary, through their decisions in the cases they have heard. Statute law, on the other hand, refers to law that has been created by Parliament in the form of legislation. Although there was a significant increase in statute law in the 20th century, the courts still have an important role to play in creating and operating law generally, and in determining the operation of legislation in particular.