How Common is the Common Law? Some Differences and Similarities in British and American Superior Court Decisions

Marion Charret Del-Bove,Laurence Francoz-Terminal

doi:10.14198/raei.2015.28.04

Abstract

American law and English law belong to the same legal tradition, the common law, characterized by a case-law system based on judicial decisions and the rule of precedent. There are indeed common features between the American and the English common law systems. There is a common language with close expressions, but also similar concepts, principles and procedures. But how common are in fact the American and British legal systems? This paper aims at finding some possible answers through a legal and linguistic analysis of some US and UK superior court decisions.

Highlights

Differences between the workings of United States (US) and United Kingdom (UK) Supreme CourtsA first common feature of the American and British legal systems lies in the fact that both have a supreme court
How common are the American and British common law systems? To paraphrase Bernard Shaw’s words, aren't the United Kingdom (UK) and the USA two countries separated by a common legal system? This paper aims at finding some possible answers through a legal and linguistic analysis of some United States (US) and UK superior court decisions that constitute an interesting indicator of two existing patterns of the common law
After this brief overview of some of the differences between American and British common law systems, notably the American principle of the sovereignty of the Constitution being opposed to the British principle of the sovereignty of Parliament, we focus on questions of language and discourse organisation through an analysis of some US and UK superior court decisions

Summary

Differences between the workings of US and UK Supreme Courts

A first common feature of the American and British legal systems lies in the fact that both have a supreme court. That the US Supreme Court stands in sharp contrast to its British counterpart when it exercises judicial review It has played a vital role in America's social and economic life due to its wide power of interpretation, that is to say “judging primary legislation against fundamental constitutional problems [...] checking whether norms are in agreement with the Constitution” (Gibson-Morgan, 2014: 84). The case put an end to the discriminatory principle of “separate but equal” established at the end of the 19th century by US Justices themselves and considered as one of the reasons for decades of segregation in certain states After this brief overview of some of the differences between American and British common law systems, notably the American principle of the sovereignty of the Constitution being opposed to the British principle of the sovereignty of Parliament, we focus on questions of language and discourse organisation through an analysis of some US and UK superior court decisions. Such texts consistently illustrate how structural features have shaped legal discourses and impacted legal language

Discourse structure of superior court decisions

Language and legal reasoning mechanisms

Conclusion