WHICH LAW APPLIED:
COMMON LAW OR CIVIL LAW?
In Shakespeare’s time, two different kinds of law existed in England: the common law and the civil law. The common law of England governed almost every kind of legal issue. The civil law—based on a vast set of codes set forth in the Corpus Juris Civilis codified under the Roman Emperor Justinian—applied only in a few specialty courts. However, the civil law did govern almost every kind of legal issue on the continent of Europe—except in Venice, which, being distrustful of centralized authorities such as Justinian, had its own laws.
Modern readers need to understand this basic division because Shakespeare made Bellario and Portia both Doctors of Law—which degree applied to those educated in the civil law—who would have been neither qualified nor permitted to try a common law case such as Shylock v. Antonio.
The common law—common because it applied throughout England—is often called judge–made law, and is based upon judicial rulings concerning specific factual and legal issues involved in specific cases. These rulings are called precedents. Over the centuries, they have been recorded in various official and unofficial records, and the legal principle involved in a particular case could become known by the name of that case; for example, The Rule in Shelly’s Case. When an identical or sufficiently similar dispute arose later, the court in that trial would preferentially follow the applicable precedent—the law—on the books.
The United States and 49 of its 50 states use the common law system. Roe v. Wade is a familiar example. The United States Supreme Court ruled that the Constitution guaranteed women the right to have an abortion at any time before the third trimester of pregnancy. That decision became a precedent, and had to be followed by all courts when deciding the same or similar issue. As the intervening years have shown, however, that hardly ended the legal wrangling.
Exactly what legal issue upon exactly what factual circumstances had been decided? Trial lawyers have reveled in this question for centuries; that is, to what particular set of facts and circumstances must the specific ruling in the precedent be applied, and what different facts and circumstances might distinguish that precedent from the lawyer’s present case such that the ruling in that precedent should not control the issue?
When Bassanio asked Judge Portia to Wrest once the Law to your authority./ To do a great right, do a little wrong… he was asking her to distinguish Antonio’s case—with its differing facts and circumstances—from the existing law, and to craft a new law to fit this circumstance: exactly what any common lawyer would have done, then and now.
As the complex history of Roe v. Wade has shown, what appears to be a clear precedent can be distinguished by subsequent decisions to such an extent that a great deal of its original force is lost. For good or ill, such work is the bread–and–butter of trial lawyers. It would have been child's play for any lawyer worth his salt to distinguish Antonio's situation from whatever the applicable precedent was. Shakespeare did not describe that precedent, which everyone called unalterable.