Comparisons of modern English, American, and Commonwealth law

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The legal systems rooted in the English common law have diverged from their parent system so
greatly over time that, in many areas, the legal approaches of common-law countries differ as
much from one another as they do from civil-law countries. Indeed, England and the United
States have so many legal differences that they are sometimes described as two countries
separated by a common law. The most striking differences are found in the area of public law.
England has no written constitution and restricts judicial review, whereas every court in the
United States possesses the power to pass judgment on the conformity of legislation and on other
official actions to constitutional norms. Throughout the 20th century, many areas of U.S. law
were constitutionalized by the increasing exercise of judicial power. Other factors that account
for much of the distinctiveness of public law in the United States include its complex federal
system and its presidential, rather than parliamentary, form of government. In the area of private
law, however, family resemblances between the common-law systems are much greater. Yet even
there, despite broad basic similarities, the common-law countries have developed distinctive
variations over time.

Personal law

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crime: Common law

The law of personal status (nationality, capacity, domicile, etc.) has been transformed by the
advancement of the principle of equality of the sexes. In the area of divorce law, the intense
legislative activity of the 1960s and 70s left most common-law countries with systems of
mixed grounds for divorce. One can obtain a divorce based upon the fault of the other spouse
or upon some no-fault ground, such as separation or breakdown of the marriage. A minority of
American states have eliminated fault grounds entirely. The major differences between common-
law systems appear in the legal treatment of the economic consequences of divorce. Most
common-law countries follow the English model that permits judges to use their own discretion
in reallocating the property and income of the spouses in a way that seems fair, whereas a
minority of American states adhere to the principle of equal rather than discretionary division of
assets. A number of states have introduced forms of civil union or civil partnership for same-sex
couples, giving them many or all of the same rights granted to heterosexual couples under state
(though not federal) law. Furthermore, same-sex marriages have been recognized by state law in
Massachusetts since 2004. In the United Kingdom, the Civil Partnership Act of 2004 afforded
homosexual couples the same rights and responsibilities afforded to heterosexual couples in a
civil marriage.
Property and succession

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The basic principles of property and succession are much the same everywhere, but the newer
countries have special laws on forests, mines, and water rights. In Australia, for example, the
crown reserves all mineral rights to itself. The transfer of land in England is governed by a
system of title registration. In Canada and the United States, the separate deeds are recorded and
title insurance is widely used to protect the purchaser. In England since the 1960s, there has been
a significant development of the law relating to restitution, the right to recover property
mistakenly transferred to another. Owing nothing to statute and much to the writings of academic
lawyers, this demonstrates the continued liveliness of the common-law tradition of decision-
based legal development.

Succession on intestacy is broadly similar throughout common-law countries but varies

everywhere in detail. The widow, for example, may get more in one country and the children
more in another. All children of both sexes generally take equal shares. In regard to intestate
succession, nearly all American states protect the surviving spouse against disinheritance by
securing to him or her a fixed indefeasible share of the decedents estate. In England and most
Commonwealth countries, however, not only the spouse but also children and certain other
dependents of the deceased are permitted to petition the court for discretionary financial
provision out of an estate if, in the judgment of the court, the testator did not make reasonable
provision for them.
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In most American states and some Canadian provinces, there are homestead laws, which protect
the family house or a certain minimum sum of money from the claims of creditors.

Tort law

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Tort law (i.e., the law relating to private civil wrongs) is largely common law, as opposed to
statute-based law, in England, Canada, and the United States. Several major reforms have been
introduced along the same lines in different countries. Allowing claims by dependents of persons
tortuously killed and removing the immunity of the crown or government or charitable
institutions from tort claims provide examples. The liability of manufacturers to the ultimate
consumer was first laid down by U.S. and then by English judges. After a slow start (compared
with Europe), the protection of employees proceeded apace in the United States in the second
half of the 20th century so as to cover almost any accident occasioned in the workplace, however
unrelated to the employers business or fault. According to some legal scholars, the U.S. system
of tort liability had become, in effect, a general substitute for a welfare system. In the wider
world also, the growth of insurance subtly affected tort law by shifting liability to those most
able to pay for coverage. A further movewhich threatens to undermine the viability of the
whole tort systemis the growth of what some perceive as a compensation culture, in which
individuals feel entitled to sue for any of a wide variety of alleged harms.

In the field of libel, U.S. practice is less strict than the English. In the United States a public
figure cannot sue for honest but unfair and untrue criticisms of his activities, whereas in England
published facts must be true and comments fair. In some Australian states truth is not necessarily
a defense to an action.

A notable U.S. tort is interference with privacy. Examples include a strangers using ones
photograph for advertising without permission, using bugging (i.e., electronic eavesdropping
devices) in ones home or searching it, or taking photographs of persons in embarrassing
situations. In England privacy is still seen as related to commercial considerations; it is possible
to buy privacy but not to enjoy it as a right.

Contracts

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Contract law is basically similar in the common-law countries. The most interesting difference
relates to the question of enforcement of contracts by third parties who are not actually parties to
the contract but are persons for whose benefit the contract was made. English law excludes such
rights, except in an occasional statute. The Indian Contract Code of 1872 generally allows it, as
does U.S. state law. In all countries, legislation now protects consumers against the power of
large commercial corporations and regulates the operation of credit transactions.

English law has largely repealed the laws requiring written evidence of ordinary contracts,
sometimes to the surprise of consumers. Written evidence is often called for in the United States.

The various areas of special contracts, such as those applying to employment, sale of land, and
agency, are broadly similar everywhere but are regulated by local legislation and by a wealth of
labour legislation.

Criminal law and procedure

In regard to criminal law, the substance of the law is much the same throughout the common-law
countries. In both the United Kingdom and the United States, the 20th century can be largely
characterized as a period during which it was thought that undesirable behaviour could be
eliminated by rigorous law enforcement. In the early part of the century, this led to the
criminalization of much personal behaviourincluding some sexual practices, gambling, and the
use of alcohol and drugsthat was previously beyond the reach of the law, the most noteworthy
example being the prohibition of alcoholic beverages in the United States from 1919 to 1933. At
the beginning of the 21st century, there were signs that some such behaviours were being treated
as medical or psychological problems rather than as criminal ones.

The death penalty, which had been slowly removed in most U.S. states since the end of the 19th
century, was revived during the 1970s after the Supreme Court ruled its use constitutional.
Capital punishment was eliminated in the United Kingdom in 1965.

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More important differences appear in the rules of criminal procedure. In England, this rests on
modern legislation. Accused persons may now testify at the trial or not, as they wish; they are
entitled to legal counsel; and they are assisted out of public funds when they are accused of
serious crimes and are unable to afford to pay the costs themselves.

Canada has a Dominion Criminal Code, which covers major crimes. It also has a Canadian Bill
of Rights and provincial laws, such as the Ontario Human Rights Code. India has an overriding
Bill of Rights.

In the United States criminal procedure has become a constitutional matter, with a kind of federal
common law of criminal procedure overriding state law in many instances. Thus, due process of
law under the Fourteenth Amendment to the federal Constitution and the Federal Rules of
Criminal Procedure confer wide protection on accused personstoo wide, some think, for public
safety.

English courts are reluctant to admit recordings of private conversations unless supported by
direct evidence of persons present, and this is generally the position taken in the United States,
although emergency wiretapping and other electronic monitoring are permitted with the
permission of a court or in some cases involving national security. English and U.S. law exclude
confessions unless they are made freely and spontaneously. If evidence is found by unlawful
meanssuch as by searching a house without a warrantEnglish law permits such evidence to
be used, but U.S. law does not. The main difference between English and U.S. safeguards is that
English protections rest on statute or case law and may be changed by ordinary statute, whereas
U.S. safeguards are constitutional and cannot be relaxed unless the Supreme Court later reverses
its interpretation or the Constitution is amended.

The future of the common law

In the past, the law performed the function of a referee in a free economy and was called in to
apply generally accepted ideas of right and wrong to individual disputes. Today, law often forms
an instrument of governmental policy or results from social pressures on the government. Law,
therefore, is increasingly administrative.

Another tendency, and one that is likely to be reinforced, is an increasing reliance on statute law
and codification as instruments of legal development. At one time the English Law Commission
considered drafting a contract code, and the law of tort has been the subject of several statutes.
When the United Kingdom entered the European Economic Community, it was thought that
there might be pressures to make English law more accessible by codifying it along the lines of
the continental model. Harmonization of the laws of the member states, however, has not thus far
required this. The introduction of human rights as a basic element in the domestic law of the
United Kingdom will undoubtedly bring about change, as will the growth of international
tribunals. In the United States the legal sovereignty of the states impedes such a radical change,
but uniform state laws are becoming more common.

In view of the general tendency in modern society of shielding the individual as fully as possible
from the consequences of chance accidents, the judge-made law of tort may eventually be
replaced, as it was for a time in New Zealand, by a comprehensive system of official or private
insurance similar to the present compulsory third-party risk insurance available for motor
vehicles. The New Zealand experience, however, suggests that this is an expensive alternative.
Public law is also gaining on private law in other fieldsin real-property development, for
example, public zoning or urban planning rules are already more important than the traditional
restrictions imposed by individual neighbouring landowners. Public-welfare laws on child care
and adoption, pensions, and social security are often more important than the older private law
based on the rights of spouses and children.

English and American law can still be recognized as partners sharing a common root in the
common law before the 18th century. But they are increasingly diverging, and English law, with
or without the European Union, now shows much more specific similarities to the law in other
countries of continental Europe than would hitherto have been admitted.