Abstract
Comparative legal study usually involves the analysis of two or more jurisdictions with a view to compare and contrast the legal practices and the theoretical framework that guides the formulation of each individual country’s legal system. In this study, I look at the jurisdictional differences between Australia, England & Wales and the United States of America (USA).
While these three countries have different legal systems, they seem to converge at certain points mainly due to shared history and culture between the three. However, there are some notable differences that come to the fore which inform the various ways in which legal scholars and practitioners in all these countries view their legal system.
Introduction
Lundmark1 (1) defines a legal system as encompassing “all behavioral legal rules in the jurisdiction, institutional rules that provide for the establishment and administration of legal institutions and all the people involved in making interpreting and applying legal rules”. This comparative study is therefore a look at the various legal systems in place in Australia, England & Wales and the US.
Legal systems can either be common law systems or civil law systems. The common law system is developed through case law or judges decisions. The principle of ‘stare decisis’ where courts are bound by prior decisions defines the common law system vis a vis the civil law system that follows a more statutory form is what separates legal systems in the world (Du Plessis 982).
All three jurisdictions have a common factor which is the fact that they were all colonies of Britain (except England and Wales of course which are part of Britain). This unifying factor means that all three jurisdictions share common features such as the application of common law.
However, it is notable that the fact that a country‘s legal system follows a civil law form or a common law form does not mean that both are exclusively applied. In actual fact, different states use both systems with the only difference being the laying of emphasis.
Jurisdictional differences and similarities
As stated above, the legal system in Australia is a common law system due to the colonial legal systems that were set up by the British that are still applicable to date.
The United States legal process has also had a significant influence on the Australian system mainly due to the fact that federalism3 in the US occurred at around the same time the Australian Constitution was being drafted to introduce a federal system in the country. As a consequence, the hierarchy and structure system of the Australian judicial system is very similar to that of the US (McHugh 56)4.
The Australian court system is similar to that of the US since it has both a federal and state system that run concurrently. The High Court of Australia which is commonly referred to as the High Court serves as the highest court on land and is part of the federal stream.
Each separate territory in Australia has its own unique court system with a Supreme Court that plays the role of the highest state court. In addition, supreme courts in the states have trial and appellate divisions.
Below the Supreme Courts are either Intermediate District Courts or Magistrates Courts depending on the state. The states without Intermediary District Courts have most of their legal disputes handled by their Supreme Courts. However, only Tasmania and two other states have Magistrate Courts below the Supreme Court.
Apart from the differences in hierarchy between the federal and state courts, another difference comes in where jurisdiction is concerned. State or territorial courts only have jurisdiction within their geographical boundaries or where the state/territory has jurisdiction in a particular matter through statute.
However, there are instances where federal and state systems can overlap in terms of jurisdiction especially where state courts are allowed to exercise federal jurisdiction through the so called Jurisdiction of Courts or Cross-Vesting Acts which are enacted to resolve jurisdictional problems between the two systems. Through cross-vesting, state courts acquire jurisdiction in federal matters.
However, this mostly applies to the superior state courts which are the Supreme Courts. The ruling in Re Wakim5 however acts to limit any attempt to vest the judicial powers of a state to federal courts since this is contrary to the Australian Constitution.
Nevertheless, state and federal courts can still hear all legal matters that arise from a particular set of facts even where issues come up that may have previously limited the court’s jurisdiction to hear the matter had the facts not been conjoined. This is known as the doctrine of accrued jurisdiction that allows courts to hear all facts of a particular case as long as they had jurisdiction to hear the main cause of action.
The above system is almost exactly identical to that of the US except for a few minor changes in legislation. Nevertheless, US state courts exercise separate jurisdiction from that of the Supreme Court which is the equivalent of the Australian High Court. However, this federal system is different from that of England and Wales.
The difference lies in the British Constitution which is unwritten and thus the traditions of the courts and their structure remains as they have been6. There is no dual system in England and Wales and thus the jurisdictional difference between Magistrate Courts and the High Court is one of hierarchy and territorial limitations. Legal language in the three jurisdictions is almost identical due to the reliance on Latin.
Approaches
Conceptualization of the autonomy of law in the three jurisdictions
Lundmark (5) states that in the Middle Ages, there was no standard definition of a jurist and thus most states developed their legal professions differently. In his research, Lundmark posed five questions to lawyers from four countries among them the United States and England & Wales.
The first question posed whether the lawyers in those jurisdictions perceived their law as being autonomous or whether they saw it as being interdisciplinary. It is through these questions that we analyze the conceptualization of law in both jurisdictions.
The question of autonomy of law is a relative of legal positivism7. Positivists often define law in formal terms and thus they would consider that the complete autonomy of law means that a laws content is neutral and that it remains a law regardless of whether it is just, moral or not.
However, this has been mostly theoretical since even in countries that consider their law to be autonomous, they feel that lawyers and judges should in one way or another appeal to their conscience. This is well captured in the Radbruch formula.
“Where justice is not even striven for, where equality, which is the core of justice, is consciously disregarded when drafting positive law, then the law is not merely ‘wrong law’, rather it completely loses its status as law. For one cannot define law, even positive law, otherwise than as an order and legislation that have as their determined purpose the service of justice.” (Lundmark 6).
On the other hand, respondent lawyers from the United States felt that the law was not autonomous but a part of other disciplines in the interest of building a just society. They were also on the opinion that law is not content-neutral since it borrows from other disciplines.
Lundmark (6) attributes this phenomenon to two things; the first is the strength of the natural law tradition8 and the other is the legal realism9 school of thought that had a huge impact in shaping American jurisprudence.
The other effect of this conceptualization of law by American scholars is that it now affects the way that law is taught in the US. It is notable that in the United States as well as in England, legal education was less academic and more practice-oriented. There was thus a reliance on German academia which had developed an academic legal sphere that studied the law as a science (Bellomo and Cochrane 95)10.
Germans perceived the law as a distinct and entirely separate discipline just like mathematics and thus they were of the opinion that legal concepts should be applied in a logical and deductive manner that separates private law from public law and emphasizing on the neutrality of law. English scholars such as John Austin drew their inspiration from the German school of thought of studying law as a science.
Lundmark (7) states the work of Karl Larenz to have been very influential on the drafting of laws in a logical and deductive manner. Larenz himself was influenced by Plato whose principles of syllogism stated logic as flowing deductively from natural law.
Therefore, German concepts being products of logical process were ‘pure’ and thus politically neutral. This contrasts with the American school of thought which is often regarded as formalism or conceptualism.
Roscoe Pound states that conceptualist theories hold that legal concepts form the very idea of justice and they contain an exact rule for each specific case that can be reached through logical deduction. Proponents such as Christopher Columbus Langdell, who was a Dean of Law at Harvard University, introduced this method of instruction based on the foundation that all legal norms could fit in a certain conceptual framework.
However, unlike in Germany, the US did not codify Langdell’s principles unlike in Germany but applied them in the education of lawyers to enable them reach logical conclusions when analyzing legal problems. To complete the conceptual framework, the US Supreme Court judges took up the practice of deducing specific rules from the constitutionally protected rights in private property, contract and liberty.
In the past century, conceptualism has bore the brunt of criticism from American law to such a level that most American lawyers find it hard to believe that it once formed part of their dominant understanding of the law. Oliver Wendell Holmes, Jr. is credit with launching the fatal attack on conceptualism through legal realism which is currently the dominant conceptualization of law in the US.
Holmes argued that Langdell’s theories were too theoretical and in fact implied that he was making concepts and rules ‘out of thin air’ and expecting people to accept them on faith alone. Holmes just like the Scandinavian legal realists11 who aimed at removing metaphysics from law, felt that legal principles and concepts should not be based on theory alone.
As an example, he criticized Langdell’s view on the ‘mailbox rule’ in offer and acceptance in contract law. Langdell had argued that the posting rule was flawed because it was illogical and unfair. According to Holmes, academics and judges while devising rules must always consider convenience and business practice just as any legislator would do.
Another reason why the US lawyers are least likely to view the law as being dependent on other disciplines is based on the fact that the US requires its would-be lawyers to study another subject for at least three years before beginning their law studies. It is thus difficult for US lawyers to divorce what they learn in their first degree from their law degree due to this requirement.
In England and Wales, the systems of legal education are dual, practice and university education yet they are not separated but are all geared for private market. Traditionally, legal studies were taught by the church in universities while those interested in private practice attended what was known as the Inns of Court.
It is notable that even at present, England & Wales emphasize on training lawyers and not civil servants. In fact, the US started training its lawyers academically earlier than England & Wales.
Towards the end of the 12th Century, England developed the Common Bench12 which heard matters that did not affect the king. Therefore, the independence of the judiciary in England began earlier and so many lawyers in the country would feel that the legal profession as well as the law have been independent for far too long and thus are autonomous from other disciplines.
However, this is not exactly the case since the view of autonomy is not as steadfast as that of German lawyers. Politics is seen by lawyers in England and Wales as being an interfering factor especially for judges who are subject to the will of a political parliament. Therefore, lawyers in England & Wales are likely to view their law as being interdisciplinary especially on political grounds.
In considering the view of Australian lawyers, we have to look at their legal system. The Australian system is very identical to that of the US in terms of hierarchy and court system (McHugh 56). However, the legal realism school of thought is not as profound as that of US scholars and lawyers.
In fact, their views on the law are much more towards England & Wales than to the US. Nevertheless, the Australian lawyer is much more likely to view the law as being interdisciplinary due to the huge influence of both the US and England & Wales legal thought.
Similarities and differences in employment of lay people in the three jurisdictions
Prior to the year 1066, England & Wales allowed leading respected citizens and noble members of society were called upon to hear and determine disputes (Vinogragoff 199)13. Lundmark (16) refers to this as the Germanic Thing since the idea began in Germany. It is from this practice that the concept of lay judges in present day Germany and Sweden stems from.
After the Norman invasion in 1066, the practice died and in their stead, sheriffs were appointed to act as local judges. In the later part of the 14th Century, these sheriffs were named as justices of the peace and they had jurisdiction over minor offences with the serious ones being heard by the king’s judges. They continued to serve until 1971.
The system of a jury14 also plays a major role in England and Wales in almost all criminal cases. A jury involves the appointment of citizens to hear the facts of a case and determine the guilt of the accused.
Sentencing and rules of procedure are left to the judge. In the United States, the role of a jury has been watered down by the defendant’s right to waive trial by a jury and instead submit to the judge. Nevertheless, juries are very common particularly in the criminal justice system.
Lundmark (17) states that if a jury in the US or England & Wales votes to convict the defendant, then the judge reviews the evidence to ensure that the jury’s decision was influenced by the substantial evidence brought before it.
The only exception is where a jury acquits a criminal defendant of a crime he or she is charged with where the trial judge or even the appellate courts have power to set aside the verdict on grounds that it is not supported by substantial evidence.
In the Australian system, juries are as commonly used as they are in both the US and England & Wales. Australian juries sit on almost all criminal matters and have power to acquit or convict depending on the weight of evidence and standard of proof. Lundmark (17) states that there is a difference between the juries of England & Wales and the US and that of civil system countries like Germany and Sweden.
According to studies, juries in Germany and Sweden can outvote judges on matters of guilt and sentencing and in fact do so in almost three percent of the cases. However, juries in the US and England & Wales have been found to be more likely to acquit suspects of crime than professional judges.
In the US, juries even have the power to prevent a judge from imposing the death penalty but lack the reciprocal power to require its imposition. In Australia, the same trend has been observed where the percentage of acquittals by a jury is higher than that of professional judges. However, Lundmark concedes that there is no objective way to determine whether the decisions made by lay judges are right or wrong.
The extent to which lay judges are used by the three jurisdictions is much less compared to countries like Germany and Sweden where the lay judges sit side by side with professional judges even in the appellate courts. These lay judges are also given power to determine points of law which is a power not extended to lay judges in the US, Australia and England & Wales15.
The jury remains the most popular method of involving lay people though Justices of Peace are still widely used in England & Wales. However, they are less common in the US. In Australia, Justices of Peace are appointed by commissions and are given power to sign affidavits and act as notaries public. They receive a substantial amount of training compared to jurors who are trained on the job.
The justification for having lay people serving and participating in judicial processes is that first; it strengthens the democratic principles by giving these processes some form of transparency and legitimacy. There is also another argument that lay involvement adds humanity, justice, freshness and life experience thus making decisions intrinsically better.
Finally, lay involvement acts as an ‘emergency brake’ to state apparatus (Lundmark 18). There is growing controversy in England & Wales on the issue of whether lay judges improve or worsen the judicial process due to the fact that juries there find for the accused in more than two thirds of the time yet in the opinion of professional judges, most of these people should have been convicted.
The cost of juries is also an issue which is compounded by the uncertainty of the law when left in the hands of lay people. However, whether lay judges continue to be involved in judicial systems remains a question of the future.
Similarities and differences in the interpretation of statutes
There is a significant difference in the construction of statutes in the three jurisdictions. In England, the reception of Roman law failed to occur and so the country was left behind by countries like Germany that embraced Roman law and codified it. Therefore, the dominant view in England & Wales is that the law existed even before statute law came into being and thus statutes only serve to augment the law.
Therefore, common law continued to apply until recently in 2009 when the Supreme Court of the United Kingdom commenced its work. Due to this fact, colonies of Britain such as the US and Australia have diverged from the overreliance on common law to a much more advance level than England itself.
In the US statutory lawmaking has diverged from that of England and Wales in three ways. First, the 1803 decision in Marbury v. Madison16 made American courts take an active role in supervising the level of constitutionality of legislation. In this light judges have influenced legislative agenda by reviewing both state and federal statutes which account for over 90 percent of US law.
Secondly, the US unlike England & Wales has too many separate jurisdictions each coming up with their own manner of drafting and interpretation. The third divergence occurs due to the fact that the US has attempted to harmonize legislation unlike England and Wales.
In the 19th Century, there was a movement in America to codify all laws and do away with common law so as to meet the needs of a fast-changing country. However, the movement achieved less than it intended to mainly because each state wanted to outdo the other in terms of business friendliness.
The other difference comes in the fact that the US has a judicial body that reviews legislation for constitutionality. England and Wales also have a principle of ‘co-operative lawmaking’ where Parliament works hand in hand with the judiciary to overrule common law.
In Australia, statute formulation and codification occurred at the same pace as all the other colonies. The emphasis on common law has also been reduced to substantive form i.e. where statutes leave interpretation to common law doctrines (McHugh 69). Courts however play a crucial part of interpreting statutes using the standard of ‘the intention of parliament’.
Just like the US, each territory or state has its own manner of drafting and interpreting statutes without reference to federal systems. When it comes to interpretation, England lays more emphasis on textual interpretation though there is an exception of European law. The differences between states in the US and Australia has led to different methods of interpretation.
Similarities and differences in the use of case law
Australia, the US and England & Wales are all regarded as common law countries in their reliance on the principle of stare decisis though the level of application various with each jurisdiction. Lundmark (24) attributes the historical use of precedents in England from the 13th century to the publication of The Laws and Customs of England written by Henry de Bracton.
Bracton argued that the rulings of the king’s courts could be used in the application of English Law with important judicial decisions being recorded in the yearbooks. These were subsequently replaced in the 16th and 17th centuries by comprehensive law reports.
Initially, English judges were making laws based on what they believed to be English law but Bentham17 criticized this in his statement that reliance on precedents meant that judges were no longer finding the law but making it. This positivistic view augmented with that of John Austin was later accepted and thus judges became more self-conscious to their role in making and developing law.
The rationale of precedence is that since the judges making the binding decision applied law, then their decisions should have the force of law as statute law. However, in England, these judicial statements actually acquired more authority hence the development of common law.
The use of precedents came under scrutiny mainly due to the unpredictability of law brought about by overreliance on precedents. In 1858, the legislature in the American State of Georgia enacted a statute that sought to decrease judicial lawmaking by preventing its Supreme Court from overruling its own decisions.
The same view was adopted by the British House of Lords in 1898 which it applied as the proper use of judicial authority until 1966. The Georgia statute was however short-lived. The requirement for a statute mandating courts to adhere to precedents is according to Lundmark (25) not necessary in the UK due to the fact that British traditions accept that the rulings of superior courts ought to be binding on lower courts.
In the US, Australia and England & Wales, there is less institutional pressure for trial courts to adhere to precedents as compared to countries like Germany. The costs of not following the precedents of higher courts are less since trial judges are mainly independent in their jurisdictions.
In the US and Australia for example, challenging precedents can be a fast way for judges to reach the top of their profession through appointments and promotions.
Due to the fact that there is no statute requiring the judges to adhere to precedent, lawyers usually take the mantle of reminding judges to follow precedents in their decision-making duties. However, this does not mean that these judges are less likely to rely on precedents. In fact, studies from the three jurisdictions show that the rate of departure from precedents remains extremely low.
Lundmark (27) notices that there exists a difference between German and Swedish precedents and those from the US and England & Wales.
The difference comes from the fact that the German Courts are only interested on the holding or ratios while Australia, US and England & Wales look at the facts and substantive reasoning behind the ruling. A look at US, Australian and England & Wales legal encyclopedias reveals that they contain more facts and information on the reasons why the judges made that particular ruling.
It is from these reasons for decisions by judges usually referred to as ratio decidendi18 that precedents enable other judges to relate the cases in hand with the ruling. This is because at times a ruling can be made on a particular matter but cannot be employed on another similar matter due to the change of one or two facts to the original case.
In such a case, the trial judge needs to read the entire ruling so as to find out which of the facts in the mixed set of facts were considered by the original court to hold more weight in making a decision.
The use of precedents will most likely continue having a significant effect on the legal field in not only these three jurisdictions but also worldwide. This is because precedents are reasonable, easy to apply and are more related to the facts unlike statutes that are general in nature and cannot apply to all the facts on a particular matter.
Conclusion
Comparative law as earlier stated helps to inform various fields such as private international law (conflicts of law) and lawmaking (Menski 119). In this paper, I have analyzed the three jurisdictions of Australia, England & Wales and United States with a view to identify similarities and differences between the three.
Though the three have many similarities being formerly unified by virtue of colonization, some differences come up on the various statutory and interpretative measures that each jurisdiction adopts independently.
Works Cited
Bellomo, Manlio and Cochrane, Lydia. The Common Legal Past of Europe 1000–1800. Washington, D.C: Catholic University of America Press, 1995. Print
Du Plessis, Paul. The Creation of Legal Principle. The Digest of Justinian, 2 (1998):1-15. Print
Lundmark, Thomas. Synopsis of the Charting of the Common Law/Civil Law Divide. Munich: University of Munster, 2011. Print
McHugh, Paul. Treaty Principles: Constitutional Relations inside a Conservative Jurisprudence. Victoria: University of Wellington, 2006. Print
Menski, Werner. Comparative Law in a Global Context: The Legal Systems of Asia and Africa. London: University of London, 2006. Print
Vinogragoff, Paul. Roman Law in Medieval Europe. London: Clarendon Press, 1909. Print
Footnotes
1 In the Synopsis of the Charting of the Common Law/Civil Law Divide. Munich: University of Munster, 2011. Print
2 In The Creation of Legal Principle. The Digest of Justinian, 2 (1998):1-15. Print
3 Division of a country into autonomous states or territories
4 In Treaty Principles: Constitutional Relations inside a Conservative Jurisprudence. Victoria: University of Wellington, 2006. Print
5 Re Wakim exparte Mcnally (1999) 163 ALR 270
6 Traditionally, authority of the courts flowed from the King or his Chancellors who were regarded as the Keepers of the King’s conscience. This system informed the structure of English courts
7 Legal positivism is a branch of jurisprudence that differs from the natural law theory and that of the realist school of thought in its believe that law has authority in itself and it is not subjective to moral standards or the whims of individuals. Positivism refers to a class of legal theorists who hold related but not similar concepts of what the law is.
8This is the earliest school of thought on what the law is and it holds the law as being from a supreme authority or divine deity. However, all natural law theorists do not agree with this definition and thus the word refers to the class of theorists who share related thoughts.
9 Recent school of thought in jurisprudence that views the law as being subjective to the whims of judges and other stakeholders in the justice system.
10 In The Common Legal Past of Europe 1000–1800. Washington, D.C: Catholic University of America Press, 1995. Print
11 Such as Alex Hagerstrom and Karl Lewelintz
12 Known as the Court of Common Pleas
13 In Roman Law in Medieval Europe. London: Clarendon Press, 1909. Print
14 A bench of ordinary citizens called upon to determine a matter of law
15 In common law systems, cases of first instance are decided on the weight of facts. Questions of law are only raised during appeal
16 5 US (1 Cranch) 137 (1803
17 Jeremy Bentham, Utilitarianism.
18 From Latin for reasons for decisions made
19 In Comparative Law in a Global Context: The Legal Systems of Asia and Africa. London: University of London, 2006. Print