What’s Uncommon About Common Law

In many ways, the U.S. legal system differs from European Law. Due to the individuality of judges it recognizes subjectivity instead of avoiding it like civil law. Arian Aghashahi introduces you to U.S. Common law.

When looking beyond domestic law and trying to understand aspects of the legal systems of other nations, a great variety of different systems can be observed. By comparison, one aspect of the legal system of the United States is noteworthy: the culture of concurring or dissenting opinions in court decisions.

It becomes interesting particularly in light of the absence of this element in legal systems of the European nations. For instance, a judge at the Federal Constitutional Court in Germany was not allowed to publish his dissenting opinion until the end of 1970. And even then, dissenting opinions are called “Sondervotum” which means special vote, indicating already in the name its unordinary nature. However, even when a limited number of dissenting opinions can be observed, judges at all courts other than constitutional courts are not allowed to publish them until today. 

In order to explain this difference, the approach taken here accepts the premise of two distinct major legal traditions in the Western world: (European) civil law and (Anglo American) common law. 

Civil law is based on deductive legal reasoning. The legislation is enacting statutes with the purpose of creating them as abstract as possible to maximise their scope. When judges are confronted with a case, they will ask which of the statutes will apply to the case at issue and then find the legislative purpose and logic of the statute applicable to the case. In doing so, they can use detailed descriptions of each section of the statutes, written by legal scholars in so-called “commentaries”.  

The reason for maximising applicability of statutes in an abstract fashion goes back to philosophical considerations already made by Roman legal scholars and explaining them is not fruitful to the purpose of this work. However, one may find a better explanation here by consulting the clear language of “Western Legal Traditions” written by Martin Vranken, Associate Professor at Melbourne Law School. According to him, civil law is like a “closed box” trying to create a coherent framework of order by trying to be a perfect system. 

In stark contrast, common law is more like an “open-ended box”, where judges will play an active role in defining the further development of it. Thus, its underlying concept of legal reasoning is an inductive one. Judges will rule on a very specific case but in doing so they will make broad generalizations from their specific observations. Once these generalizations are made, they become to what we call a “precedent”. In contrast to the commentaries of the civil law, the precedent is the key feature of the common law. Therefore, judges will consult the holding of courts of the same jurisdiction made in previous cases with similar facts to find a base for their reasoning. Some issues brought a reasoning of such significance that they are called “landmark case”. 

Based on this short comparison, one may find that the reason for a broad landscape of dissenting opinions in the common law is a natural system theoretical result – based on its at least to some extent stronger recognition of the role of judges. However, with the assumption that only majority opinions become part of precedent on which the reasoning of further decisions will be based, one might ask the question why the focus of this work lies on the role of dissenting opinions. So, does dissenting opinions have any measurable actual range?

Common law denies the civil law’s approach of creating a coherent system of inherent perfection because it recognizes a legal system as human construction and unlike e.g. gravity as product that is strongly influenced by subjectivity.


Arian Aghashahi explains the significant difference between U.S. and European Law.

An answer may be provided by going back to the year of 1954 with regards to the Supreme Court’s case Brown v. Board of Education. As a response to the American Civil War, Congress passed the Fourteenth Amendment to the Constitution, stating that “No state shall deny to any person within its jurisdiction the equal protection of the laws”. However, the Equal Protection Clause did not result to the end of racial segregation in public space. A legal reason lies in the Supreme Court’s decision Plessy v. Ferguson in 1896. By a vote of seven in favor to one dissent, the majority held that under the so-called doctrine of “separate but equal”, equality of treatment is accorded when the races are provided substantially equal facilities even though these facilities be separate. In Brown, the justices were facing the same issue. In a landmark decision, a unanimous Supreme Court confirmed Justice Harlan’s dissent in Plessy, who stated “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” 

After arguing that the high occurrence of dissenting opinions is a natural systematic result and emphasizing their significance with respect to a Supreme Court’s decision in 1954 that initiated the end of racial segregation in public space, the rationale behind the common law as an “open-ended-box” may occur. Common law denies the civil law’s approach of creating a coherent system of inherent perfection because it recognizes a legal system as human construction and unlike e.g. gravity as product that is strongly influenced by subjectivity. A legal principle may not be substantiated by mathematics, such as universally valid physical rules. A judge shall not be seen as an instrument measuring the laws of nature precisely. A judge may be seen as individual due his nature as human being and therefore with regards to his inherent subjectivity. That is actively recognized in the common law underlying the U.S. legal system but avoided in the civil law of the European nations. 

In 2016, Arian started studying law at Free University Berlin. Since 2018 he is an LL.M. Candidate at the University of Connecticut School of Law.

Image Source: Pxhere. CC 2.0. Public Domain.

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