Why do we need to study common law property？

Property law evolved under the Anglo-American common law system is frequently referred to as the “backbone”，along with Contracts and Torts.Many countries，France，Germany，and China included，have property law.Why do we pick the common law property for particular attention over the others？

Like torts and contracts，the individual behavior varies from case to case，and there can hardly be a general rule stating what is right and what is wrong.But indeed，there is some guidance for the individual behavior in all cases，which are highly casespecific.In this sense，we call such guidance the “unwritten” law，or the “common law”.Due to the voluminous contents，various efforts have been poured in to create a collective body of property law.So far it has not been completely successful.Or maybe，it is impractical to create such a gigantic compilation of rules，because the common law system of property law has been working properly.If such general guidance is verbalized，like the penal code of criminal law，it will be difficult to imagine the kind of inconvenience it might bring to society given the small benefit to lawyers and judges in court.

To a large extent，property problems cannot be predefined，or easily solved with predetermined general rules.This creates the headache for lawyers and judges with civil law mindset.If there are no definitive rules written in black and white，an issue would be considered as “unjusticiable” in court，which sounds like a “chicken or egg”problem.

Do we，the humans，act in some orderly fashion because there is a law that allows us to do so，or indeed，the law has to follow our footsteps？ If the former，how can we act when there is no law that tells us to move forward？ If the latter，how do we know，and who should tell us，that we have acted in a right or wrong way？ In the common law solution，the “rules” are always there，like natural things，that we knowingly or unknowingly follow in our daily acts.This has been achieved by the judges’ function in “finding the law.”

A common law court，when faced with a problem，would first hear from the parties who present their “cases”–by telling their versions of the story from each side –which is the fact-finding process，through cross-examinations and witnesses’ accounts of what has happened.The credibility of their story is evaluated by the twelve jurors，who will render a decision on facts，and then，under the instruction of law given by the court，decide on each legal issue.The “law” given here is the rule established in previous cases on identical or similar issues (not necessarily the same facts）.Even if an issue has never been contemplated before (a case of first impression），the judge will not throw up his hands and dismiss the case for lack of proper legal rules.He will use his reasoning power to sum up a new rule by analyzing the facts.

Many important property law problems are solved this way，from a public nuisance that had an economic impact on an entire industry，[1] to landlord-tenant disputes that affects the societal infrastructure resulting from historical development.[2]

The common law system，evolved in England when the conquerors felt a need to balance the judicial practices under some kind of rules that should be “common” to all people，in all places，at all times，has been proven a working success.Although we frequently refer to it as Anglo-American legal system，it has actually been practiced in all English-speaking countries.That is to say，about half of the world’s population live in the common law world，and its influence has been felt in many civil law jurisdictions.

The common law is not merely a set of rules different and separate from any other legal systems，such as the European continental law system.To a large extent，most common law rules have their counterparts in other legal systems.What is true under the common law is considered universally accepted.That’s why it is called the“common” law.The common law is just supposedly the right way，recognized by most people through a judge，of carrying out daily routines.The judge does not create the rules，he “finds” them，as if to understand what has long been existing in nature.For example，when you owe money，you must repay it； if you don’t like to be beaten，you shouldn’t do it to others，and if you do，you should not be surprised if others to do the same to you (remember the Ten Commandments in the Bible？）.And that’s not all of it.If a judge makes a mistake，chances are that he would be corrected by his superior，the appellate court，and more importantly，he will be criticized； he will be ignored by his fellow judges； and no one will follow him，and in some instances，he will be denounced，and in rare cases，his decision will be overturned by a later court.That will prompt a judge to think carefully in reaching his decision：he would listen quietly to the stories of facts from both sides，their arguments together with witnesses to form sufficient evidence and place them on the record； he would search for the decisions made in the past to see if there has been any established rules to guide him，and if not，use his power of reason to develop a new rule，to be tested again，and again，in future cases，and once well tested，the rules would become “settled”.

To a great extent，we can credit the English success to its legal system，and property law in particular.The English，by all means，were not the earliest in overseas expansion，but when she grabbed a foothold in the new Continent，the first thing her settlers did，unlike the Spanish or French adventurers who were more interested in seeking the gold and silver，was to set up communities with churches and courts–to establish law and order.Not only did they acquire new properties，but also they put the resources to great use.For this reason，the English settlements，relatively small though，would grow，to form the United States that eventually outran the race against the Spanish，the French，the Dutch，and many others for controlling the new world.

Moreover，for an obvious reason，we study the common law property for the proper language.What does it mean to “transfer from O to A and his heirs”，and what is a “fee determinable on condition precedent (or condition subsequent）”？ We often say “indeed，it’s true” for emphasis.Why “indeed”？ Many of the property law terms have survived hundreds of years and entered our daily use.

One thing，perhaps too philosophical to be considered among property law scholars and students，is the profound influence of the Anglo-American property regime upon the progress of history.The common law property system，developed over the hundred years in England，despite the political changes，remained unaffected； when the English colonial settlements were established in America，they not only brought their language，their religion and political systems to the new world，they also installed the English common law in the new land.Although the property systems in the two countries developed separately，especially after independence，and experienced significant changes at various times，the basic principles were preserved，and that undisputedly formed the backbone of the national strengths of both countries politically，economically and socially.

In China，however，there has never been a consistent property system over the thousands of years of history.Land，for example，was divided among the kinsmen of a ruler in the earliest feudalistic period，very similar to that of the English property system after the Norman Conquest； after a few hundred years，land became much contested for，and this dispute over the feudalistic source of wealth in England was very well handled，with some turbulence，but not major social revolution，to usher in the industrial revolution.Yet，in China，such problems were nonetheless resolved，without exception，by social revolutions again and again，almost every other hundred years.Once a new ruler came to power，he and his followers would take everything of the country，including the land，and even the personal belongings of the previous regime.It is interesting to note that in China seldom do you see anything that has been owned by a single owner more than a hundred years.There may be other reasons for China’s constant social revolutionaries (such as lack of restraint on the absolute powers），but the conspicuous absence of a persistent property law unquestionably added to the frequent violence of social upheavals.