History of common and civil law Midterm questions Flashcards
What is considered the main event that led to the emergence of the common law tradition?
After the Norman Conquest of 1066.
The development of a centralized legal system in England, particularly under the reign of Henry II, led to the establishment of common law by standardizing legal practices and decisions.
Why does the common law seem to be both common and particular to England and Europe?
Common law is “common” because it applies uniformly across England, yet it is also particular to England due to its unique historical development. Similarly, it has parallels with European legal traditions but remains distinct. Particularly based on Roman law.
Why is the common law referred to as the “secreted law”?
The term “secreted law” refers to the way legal principles evolve gradually over time through judicial decisions rather than being explicitly codified.
What does the phrase “The common law was therefore suppletive law and not binding law” mean?
It means that common law served as a supplementary system, filling in gaps where no statute applied, rather than being a rigid set of codified laws.
Why does Glenn write, “There is still a law of torts”?
The plural “torts” is used because tort law consists of multiple specific categories of civil wrongs, rather than a single, unified body of law.
Why is the notion of a subjective right alien to traditional common law?
Common law historically focuses on procedural remedies and case-by-case adjudication rather than abstract, subjective rights.
How are legal fictions used in the common law system?
Legal fictions are devices used by courts to apply existing legal principles to new situations without formally changing the law. They allow the law to adapt to societal changes while maintaining continuity. For example, in early English law, the fiction of “trover” allowed a person to sue for the return of property by pretending that the defendant had found and wrongfully kept it. Another famous example is the concept of “corporate personhood,” where a corporation is treated as a legal person for contractual and liability purposes. These fictions enable the law to evolve gradually while preserving precedent and consistency in legal reasoning.
How do the first pages of Justinian’s Institutes reflect the characteristics of the civil law tradition?
They emphasize codification, systematic legal principles, and the influence of Roman law on civil law systems.
How does Grotius’ The Jurisprudence of Holland fit within the civil law tradition?
It follows Roman-Dutch legal traditions, showcasing structured legal reasoning and codified principles.
How does Blackstone’s text fit the common law tradition?
Blackstone’s Commentaries articulate the principles of common law as developed through judicial decisions rather than codified statutes.
