• Sir Edward Coke and Sir William Blackstone believe that the common law was the law of reason.

• Most Continental European lawyers believe that case law is merely evidence of the law—not the law itself.

• The beliefs that the common law is to be found primarily in precedents and that the law can be inferred just from the cases are ideas that did not take hold until quite late in the nineteenth century.

The Common Law Expresses Reason

• The common law claims its authority not just from custom and the authority of the courts but from basic principles of reason and justice.

  • Coke said, “Law is the perfection of reason, which commands what is useful and necessary and prohibits the contrary”.

  • This understanding of reason is sometimes called lex non scripta, the unwritten law.

• The claim that the common law expresses reason does not distinguish the common law from the French Code civil, whose advocates also claim that it is the perfect embodiment of reason.

The Common Law is Linked to Language

• All the English-speaking countries of the world have adopted the common law, and there is no common law country that has succeeded in translating the common law into another language.

  • It is possible to translate the common law word for word, as some law schools in Canada have done, into French, but the English template always remains the foundation of legal discourse.

• In the Continental civil law, then, there is no connection between the law and a particular language.

• The French, Germans, and Italians have exported their codes and their doctrinal teachings all over the world.

The Common Law is Based on History

• The roots of the common law lie in the Middle Ages.

• In many areas of law, we rely upon principles that scholars and courts developed before anybody had an inkling of democracy or human rights or many other values that we now take for granted.

  • The jury system is thought to be democratic, but, in fact, it is far older than European democracy.

• The common law has seen no rupture in its historical development comparable to the revolutions and movements toward codification that occurred in the civil law world.

• The codifications of private law in France (1804), Germany (1900), and other Continental countries represent broad and sudden substantive changes, particularly a nationalizing decentralization of the common heritage derived from Roman and canon (church) law.

• In the common law, there is no “new beginning.” The common law always builds on the past, frequently reinterpreting the past in order to solve modern problems.

The Common Law is the King’s Law

• The common law stood in contrast to the law of the local courts, but the English progressively asserted the central jurisdiction of the king’s court and of Parliament.

  • This is not to say that the king could decree the law but that the common law was the national law, common to all the king’s subjects and embodying principles applicable to all.

• The common law consists not only of cases and precedents but also of legislative interventions by Parliament.

The Common Law Merges Substance and Procedure

• One bias of civil law training is the view that substance and procedure represent two entirely different realms of law.

• The study of cases in the common law tradition seeks always to locate the case in a procedural context.

  • In learning the art of reading cases, common law students must learn to pay attention to the “procedural posture” of the case.

  • Procedure dominates the common law, and in the cracks and joints of the procedural machine we can find rules of substantive law.

The Early Common Law Relied on the Writ System

• The writ system exemplifies the interweaving of substance and procedure.

• The way you sued somebody in the English common law of the Middle Ages was to go to the chancellor and request a writ that would enable you to invoke the assistance of a court for a particular purpose.

  • The writs had different names—trespass, trespass on the case, trover, assumpsit, debt, ejectment, and the like—and each writ covered a body of private law that we now associate with tort, contract, or property.

• The plaintiff had the responsibility, with the assistance of a lawyer, of analyzing the facts of his claim and requesting the correct writ.

  • If the plaintiff chose the wrong writ—or a judge said it was the wrong writ— the defendant could move to dismiss the action for this procedural mistake.

  • The writ was like a license to sue, and you had to have the right license to get into court.

• New York abolished the forms of action in 1848 when it adopted the Field Code of Civil Procedure, which authorized one complaint for all civil actions.

• The requirement that the plaintiff choose the right remedy—damages or specific performance—stands as a reminder of the strict rules of pleading that prevailed under the ancient system of writs.