By: Julienne Grant
On the morning of August 1, Professor Francis Reynolds Q.C., Emeritus Professor of Law at Worcester College (University of Oxford), began the 2016 IALL Course with a talk on “Diversities Among Common Law Nations.” As indicated by the speaker, the purpose of the presentation was to provide only general observations of differences between selected countries following the common law tradition.
Before proceeding into the main content of his lecture, Professor Reynolds made a brief detour to define common law. According to him, the common law is a legal system wherein the application of law does not begin with a code, but rather a corpus of prior court decisions that judges utilize to reason by analogy. In defining common law, the speaker also contrasted it with the civil law tradition, suggesting that the methodology is the same, but the technique is different; that is, the two systems differ in their treatment of precedent.
Professor Reynolds next segued into a general examination of the development and use of common law in various jurisdictions. The speaker posited that the common law itself is largely an English invention that is now utilized in numerous countries across the globe, although its functionality varies. The speaker emphasized that there is really no such thing as British law, as Scotland has its own legal system. He said that the term “U.K. courts,” however, can be accurate in the right context and noted that there is now a U.K. Supreme Court that has been operational since 2009. The professor contended that the use of common law in the U.S. departs from that utilized in the U.K., partly because of the U.S.’ sheer size and geography.
Turning to Australia, the speaker specified that there is also no general Australian law and that emphasis there is on court opinions emanating from the states of Victoria and New South Wales, with the latter decisions being “more adventurous.” Professor Reynolds observed that the High Court of Australia, the country’s final court of appeal, has been reducing the number of categories of law as of late. The professor also mentioned the 1974 Trade Practices Act, specifically §52, which created a new form of liability for deceptive conduct in the consumer protection context, along with a new remedy. Focusing next on New Zealand, the speaker asserted that legal reform began there in earnest in the 1970s, specifically referencing the 1970 Illegal Contracts Act and the Contracts (Privity) Act of 1982. Professor Reynolds noted that not all of the attempted legal reforms have been successful in that country, although these types of changes are generally easier to implement in smaller jurisdictions.
Moving to Hong Kong, the speaker indicated that the Court of Final Appeal there is a bastion of the retention of common law values. The Court, which is Hong Kong’s highest appellate court, has a high standing in the common law world. He noted that there is increasing use of Chinese in the lower courts, which begs the question, can the common law be applied successfully in a language other than English. Turning to Singapore, the professor explained that there has been an increasing amount of commercial law litigation there in the past ten to fifteen years. In Singapore, there is no third tier appellate court of review, and the country is currently experimenting with a new International Commercial Court.
Professor Reynolds conceded that he did not have a clear view of the common law in Canada, a statement that prompted laughter from many audience members. He suggested that Canada is another example of where common law is utilized in a jurisdiction where its linguistic tradition is not exclusively linked to the English language. He also briefly touched upon India, where he maintained there are serious delays in the judicial system and outdated codes. The speaker also mentioned the Judicial Committee of the Privy Council (JCPC), which he contended does not have enough vision, although there are still some important cases emerging from the JCPC.
The speaker closed his talk with a brief look at the current status and future of the common law. Overall, Professor Reynolds views it as a satisfactory method for private law cases and stipulated that the common law would be difficult to change, as its legal methodology is essentially a cultural matter. In addition, he pointed out the increasing popularity of international commercial arbitration, concurrently noting that the common law is often applied in that context. Regarding the latter, he referenced recent developments in Singapore, Dubai, and Abu Dhabi. Professor Reynolds concluded that the common law is indeed still vigorous and internationally viable.
Several attendees subsequently added to the discussion with information, questions, and comments. Professor Reynolds’ paper on his presentation topic will be published in a forthcoming issue of the International Journal of Legal Information (possibly in January 2017).