The Common Law and National Sovereignty

Abstract:     
Both the common law and the concept of national sovereignty have faced increased challenges from the growing impact of international and supranational law in the latter part of the 20th century. This paper will argued that it is not surprising that both face somewhat similar challenges, given that the common law evolved in the Middle Ages essentially as a unique national system in contrast to the spread of Roman Law based systems in most of the rest of Europe. Consequently, the common law system was intrinsically more favourable to concepts of national sovereignty and the latter was generally asserted earlier and more successfully in common law jurisdictions. Certain common factors, notably geographic isolation contributed strongly to this. Even after the general European acceptance of the concept of national sovereignty at the Peace of Westphalia in 1648, a common law system generally carried with it a more pronounced assertion of national sovereignty. An example is a generally dualist as opposed to monist approach to international law. Another is a generally more reticent approach to constitutional entrenchment of bills of rights, or surrender or national sovereignty to international institutions or organisations.

Working Paper Series