A Few Thoughts on the Common Law Tradition

How much is really understood about the common law legal system? And what does the common law have to do with military law, history, and society? Until perhaps 1920, and definitely by 1950, military law and society evolved in a similar fashion. The common law tradition, therefore, informs our understanding of the evolution of military law.

The common law tradition originated in England. Sir William Blackstone’s influential multi-volume work, Commentaries on the Laws of England, is one of the leading (if not the leading) 18th century treatise on the common law of England. The American legal system looks to his treatise as the definitive source of the common law as it existed prior to the American Revolution.

I’ve been reading through this work and came across a few interesting passages I’d thought I’d share over a few posts.

Blackstone explained the law of England could be divided into two categories: the unwritten, or common, law (lex non scripta); and the written, or statute, law (lex scripta). When we think of American law today, we think of statutes. As the use of statutes became more popular in the mid-1800s, we have become less familiar with exactly how common law works.

Basically, the common law is a collection of customs. As Blackstone writes, these include general customs of the kingdom, particular customs of certain parts of the kingdom, and particular laws by custom observed in certain courts and jurisdictions (i.e. ecclesiastical courts, military courts, courts of admiralty, courts of Oxford and Cambridge Universities).

Another interesting aside—all these courts were supervised by the courts of common law: the chancery, the king’s bench, the common pleas, and the exchequer. The king served as the court of last resort.

To prove a particular rule or maxim was in fact a rule of the common law, it must be demonstrated that the particular rule or maxim has always been a custom. But who is to know that, without Reporters that consolidate decisions (those came later)?

Tune in next time.

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