Civil law and courts of equity: the common law is hybrid law
By Kristopher A. Nelson
in October 2011
600 words / 3 min. The Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.
Note: this post is from 2011. Evaluate with care and in light of later events.
As I noted earlier in Civil law’s influence on American common law: the appeal, the Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.
The American legal system directly drew on the English one. As noted above, the English legal system was really (at least) two parts: common law (the King’s Bench, Court of Common Pleas, etc.) and equity (the Courts of Chancery). The various new states, along with the federal court system, variously integrated or continued this separation–but generally emphasized the common law as the protector of the common man. This was the case even though the courts of equity had been for centuries the protector of principles of justice and fairness, while common-law courts had been seen as interested only in formal mechanisms through its rigid system of “writs.”
The relationship, though, was complex and not at all as simple as this. Common-law courts gave jury trials to those accused, and guaranteed the right to confront an accuser, while the courts of equity had no juries and took evidence in secret. Despite relying on judge-made precedents, the common-law courts became associated with Parliament against the King, while the equity courts (especially the notorious Star Chamber) dispensed royal justice (an appeal to equity was an appeal to the conscience of the king). Common-law juries refused to convict those they considered unjustly accused (especially for political reasons), regardless of the law (now called “jury nullification”). Common-law judges began to enforce both judge-made customary law and the statutes of Parliament.
Lawyers in the equity system in England were known as “civilians,” and historically had been trained in canon law. Canon law was the law of the Catholic Church, and derived from Roman civil law. With the break from Rome by Henry the VIII, the equitable system moved from an appeal to King and Pope to an appeal only to the King–but the sense of connection to Rome continued for many, and likely contributed to generally Protestant America’s suspicions of English equity.
Despite this suspicion, courts of equity were adopted into the American system in various ways. Some states kept distinct courts, others merged them, but all kept the remedies (typically, injections) afforded by the system as a necessary complement to the common-law remedies (typically, monetary awards only for non-criminal trials–though the common-law system gave us habeus corpus as a remedy against abuses of equity’s jailing of people for refusing to obey injunctions).
In effect, in both England and America, there has been an uneasy back-and-forth between courts of law and court of equity. Even when these have been merged into one body, there has been a continuing balancing and negotiation between common law’s methods and equity’s methods.
Civil law gave us the appeal to equity. Common law gave us habeas corpus and the jury. Equity gave us straightforward complaints written in the vernacular. Common law gave us the adversarial battle between attorneys. Equity gave us discovery.
In short, despite everything I was led to believe in law school, the United States (and England, for that matter) really has a hybrid civil/common-law system.
- Civil law’s influence on American common law: the appeal (inpropriapersona.com)
- Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial (ssrn.com)