A common law legal system is characterized by case law developed by judges, courts, and similar tribunals, when giving decisions in individual cases that have precedential effect on future cases. The body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes. In common law cases, where the parties disagree on what the law is, the court is usually bound to follow the reasoning used in past decisions of relevant courts. If the court finds that the current dispute is fundamentally distinct from previous cases, judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of common law systems, but connotations of the term "common law" vary according to context, both in present-day use and historically.
Common law originated during the Middle Ages in England, and from there was propagated to the colonies of the British Empire, including India, the United States (both the federal system and all, except Louisiana, of the 50 states), Pakistan, Nigeria, Bangladesh, Canada (and all its provinces except Quebec), Malaysia, Ghana, Australia, Sri Lanka, Hong Kong, Singapore, Burma, Ireland, New Zealand, Papua New Guinea, Jamaica, Trinidad and Tobago, Cyprus, Barbados, South Africa, Zimbabwe, Cameroon, Namibia, Liberia, Sierra Leone, Botswana, Guyana, and Fiji. Today, one third of the world's population live in common law jurisdictions or in systems mixed with civil law.
The development of case law in common law jurisdictions relies on the publication of notable judgments in the form of law reports for use by lawyers, courts and the general public, including those judgments which, when delivered or later, are accepted as being "leading cases" or "landmark decisions". The records, commentaries, writings by jurists and historians, and text-books on pleading, show that from the establishment of the common law courts in the thirteenth century to statutory reforms in the nineteenth century, the development of case law was constrained by the common law "forms of action".
- 1 Primary connotations
- 2 Basic principles of common law
- 3 History
- 3.1 Development of common law before 21st century
- 3.2 Records and literature
- 3.3 Archaic
- 3.4 From 11th century
- 3.5 Medieval English common law
- 3.6 Influences of foreign legal systems
- 3.7 Propagation of the common law to the colonies and Commonwealth by reception statutes
- 3.8 Decline of Latin maxims, and adding flexibility to stare decisis
- 3.9 1870 through 20th century, and the procedural merger of law and equity
- 3.10 Common law pleading and its abolition in the early 20th century
- 4 Contrasts between common law and civil law systems
- 5 Common law legal systems in the present day
- 5.1 Scotland
- 5.2 States of the United States (17th century on)
- 5.3 United States federal courts (1789 and 1938)
- 5.4 United States executive branch agencies (1946)
- 5.5 India (19th century and 1948)
- 5.6 Canada (1867)
- 5.7 Nicaragua
- 5.8 Israel (1948)
- 5.9 Roman Dutch Common law
- 6 Alternatives to common law systems
- 7 Scholarly works
- 8 See also
- 9 References
- 10 Further reading
- 11 External links
The "common law" can briefly be described as the part of English law that is derived from custom and judicial precedent, and is distinct from statutory law, equity law, and ecclesiastical law; or, in the U.S. jurisdiction, the body of English law as adopted and adapted by the different states. Similarly, in Black's Law Dictionary (1968 edition) containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, "common law" in the United States was described as the portion of the common law of England that had been adopted and was in force at the time of the Revolution (including such acts of parliament as were then applicable), and that now forms part of the law of most of the states, while federal common law was described as a body of decisional law developed by the US federal courts untrammeled by state court decisions.
Those descriptions show that after the founding of the United States as a federal republic in the 18th century, the words "common law" as the name of a particular body of law came to have different connotations in England and in the United States.
Connotations of the term common law in current use continue to vary according to context.
Common law as opposed to statutory law and administrative/regulatory law
Much of the law in common law systems is "statutory law" enacted by a legislature, or "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, as distinct from the common law or "case law", that is, decisions issued by authoritative courts. This can be further differentiated into
- (a) pure common law: arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts.
- (b) interstitial common law: court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called "interstitial common law," includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
Common law legal systems as opposed to civil law legal systems
In some contexts, "common law" is used to differentiate a jurisdiction or legal system from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.
By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute. Judicial precedent is given less interpretive weight, which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably, whereas scholarly literature is given more weight than in common law systems. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.
Law as opposed to equity
In some other contexts "common law" (or "law") is differentiated from "equity". Before 1873, England had two parallel court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes", below). For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Additionally, even before the separate courts were merged, most courts were permitted to apply both common law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following:
- categorizing and prioritizing rights to property—for example, the same article of property often has a "legal title" and an "equitable title," and these two groups of ownership rights may be held by different people.
- in the United States, determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim) or whether the issue will be decided by a judge (issues of what the law is, and all issues relating to equity).
- the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review (issues of law are reviewed de novo, that is, "as if new" from scratch by the appellate tribunal, while most issues of equity are reviewed for "abuse of discretion," that is, with great deference to the tribunal below).
- the remedies available and rules of procedure to be applied.
Courts of equity rely on common law principles of binding precedent.
Basic principles of common law
Among American jurists, one, Oliver Wendell Holmes, Jr., began his treatise The Common Law (1881) with a reminder that the life of the law has not been logic but experience. He considered that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions." Another, Benjamin Cardozo, noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively," but "[i]ts method is inductive, and it draws its generalizations from particulars."
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (for sufficient reason) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through working out the details in a series of gradual steps, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.
An example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, Winterbottom v. Wright, the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and, looking to the contractual relationships, held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party.
A first exception to this rule arose in 1852, in the case of Thomas v. Winchester, when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger", and the court decided to make this an exception to the "privity" rule. In, 1909, New York held in Statler v. Ray Mfg. Co. that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed."
Yet the privity rule survived. In Cadillac Motor Car Co. v. Johnson, (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and ‘dozy‘ wood, quite insufficient for its purposes." The Cadillac court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor." However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud,"
Finally, in the case of MacPherson v. Buick Motor Co., in 1916, Judge Benjamin Cardozo for New York's highest court discerned in these cases a broader principle. The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:
It may be that Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.
We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.
Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger." MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.
This illustrates two principles: (a) that development of the common law is in the hands of judges, and (b) that the reasons given for a decision can be more important for the development of the law than the outcome in a particular case.
Interaction of constitutional, statutory and common law
In common law legal systems, the common law is crucial to understanding almost all important areas of law. For example, in England and Wales, in English Canada, and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). As another example, the Supreme Court of the United States in 1877, held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.
In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods, or the criminal law), legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the interstitial common law. To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"—but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the Constitutional text can only be determined by consulting common law as opposed to interstitial common law.
In common law jurisdictions as opposed to civil law legal systems, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law and custom. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document—when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated—for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. (For this reason, many modern American law schools teach the common law of crime as it stood in England in 1789, because that centuries-old English common law is a necessary foundation to interpreting modern criminal statutes.)
With the transition from English law, which had common law crimes, to the new legal system under the U.S. Constitution, which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson and Goodwin, 11 U.S. 32 (1812), which decided that federal courts had no jurisdiction to define new common law crimes, and that there must always be a (constitutional) statute defining the offense and the penalty for it.
Still, many states retain selected common law crimes. For example, in Virginia, the definition of the conduct that constitutes the crime of robbery exists only in the common law, and the robbery statute only sets the punishment. Virginia Code section 1-200 establishes the continued existence and vitality of common law principles and provides that "The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly."
By contrast to statutory codification of common law, some statutes displace common law, for example to create a new cause of action that did not exist in the common law, or to legislatively overrule the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly—that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism).
Where a tort is rooted in common law, all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
In the United States, the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution, Article III sections 1 and 2: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ... The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..." The first famous statement of "the judicial power" was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Later cases interpreted the "judicial power" of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution.
The interactions between decisions of different courts is discussed further in the article on precedent.
Overruling precedent—the limits of stare decisis
The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive.
Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc (that is, all active judges of the court) or by a higher court. In these courts, the older decision remains controlling when an issue comes up the third time.
Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.
In the UK, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts. From 1966 to 2009, this power lay with the House of Lords, granted by the Practice Statement of 1966.
Canada's system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.
Common law as a foundation for commercial economies
The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right." This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply.
This is the reason for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States. Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law, and American contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on.) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues. On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law. Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result.
Likewise, for litigation of commercial disputes arising out of unpredictable torts (as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph), certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.
This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read (the United States tax code is an example). Nonetheless, as a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the case law of the common law courts of even a smaller jurisdiction, and that deeper, more complete body of law provides additional predictability that promotes commerce.
Development of common law before 21st century
The lineal ancestor of all common law systems today is the common law of England as at the time of Coke's Institutes of the Lawes of England in the 17c., and as described in Blackstone's Commentaries on the Laws of England (1765–69). A description of the common law of England is practically also a description of the common law administered in all the jurisdictions of the English (British) colonies and dominions until their juridical independence, either upon becoming a republic (USA), or upon cessation of the appellate jurisdiction of the Privy Council in London.
The term "common law" came to denote, in the first place, the body of judge-made law that developed in England, as described in a work published at the end of the 19th century, The History of English Law before the Time of Edward I, in which Pollock and Maitland expanded the work of Coke and of Blackstone, and to denote specifically, the body of law developed in England's Court of Common Pleas and other common law courts; and this law as further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s, and developed independently, before and after the 1870s, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom. The term is used, in the second place, to denote the law developed by those courts, in the same periods (pre-colonial, colonial and post-colonial), as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the Court of Chancery, the ecclesiastical courts, and the Admiralty court.
Maitland, quoting the British comparative jurist Henry Maine (in Maine's Early Law and Custom, 1883), remarked "Let us remember one of Maine's most striking phrases, So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure." Maitland added that particularly in the law of real property, the common law "had been secreted in the interstices of the forms of action", and that the system of Forms of Action or the Writ System is the most important characteristic of English medieval law, remaining until its piecemeal destruction in the nineteenth century.
In the Oxford English Dictionary (1st edition 1933) "common law" was described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiastical law, and admiralty law. Citations supporting that description before Blackstone, are from the 14th and 16th centuries. For usage in the United States, supported by two citations from 19th century sources, the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them".
Similarly, Black's Law Dictionary (1968 edition) containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, described "common law", first, as the "body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Ango-Saxon stock", as distinct from law created by the enactment of legislatures, equity law, and ecclesiastical law; and secondly, "as concerns its force and authority in the U.S., that portion of the common law of England which had been adopted and was in force at the time of the Revolution", including such acts of parliament as were then applicable, while federal common law is described as "a body of decisional law developed by the federal courts untrammeled by state court decisions."
Common law contrasts with ius commune. While historically the ius commune became a secure point of reference in continental European legal systems, in England it was not a point of reference at all.
Records and literature
The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King’s Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King’s Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center). The Year Books were written in Law French, which continues to be used only in the words signifying giving or withholding royal assent to a bill in the UK parliament, including acts which codify a part of the common law or alter common law.
Publications of the Selden Society include a Year Books series and other volumes transcribing and translating the original manuscripts of early common law cases and law reports, each volume having its editor's scholarly introduction.
In an archaic usage, "common law" refers to the pre-Christian system of law, imported by the Saxons to England, and dating to before the Norman conquest, and before there was any consistent law to be applied. This description is found or alluded to in some internet dictionaries.
In the late 9th century, Alfred the Great assembled the Doom book (not to be confused with the better known Domesday Book from 200 years later), which collected the existing laws of Kent, Wessex, and Mercia, and attempted to blend in the Mosaic code, Christian principles, and Germanic customs dating as far as the 5th century.
Before the Norman conquest in 1066, justice was administered primarily by a system of shire courts, presided by the king's sheriff and the diocesan bishop, exercising both civil and ecclesiastical jurisdiction, and hundred courts. While in some sense an early form of jury came to be part of the procedure in the shire courts, the development of the common law grand jury and petty jury came later.
From 11th century
From at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.
The "common law" further developed from the 1160s, as a result of the procedures of the assizes introduced in the reign of Henry II. The "common law" was the law that emerged as "common" throughout the realm (as distinct from the various legal codes that preceded it, such as Mercian law, the Danelaw and the law of Wessex) as the king's judges followed each other's decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom and precedent.
This period saw the beginning of the use of the form of reasoning known as case-based reasoning, as applied in civil cases (as distinct from criminal cases), and the process of awarding damages for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts known as the adversarial system was also developing.
Medieval English common law
The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books, of which the first extant was published in 1268, the same year that Bracton died. The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.
In the time of Henry II common law developed as a unified system of law "common" to England. The practice developed of sending judges from the king's central court hear the various disputes locally. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and enrolled. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law."
The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster, permanently except in the vacations between the four terms of the Legal year.
Influences of foreign legal systems
The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.
By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent. However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law. One of the first and throughout its history one of the most significant treatises of the common law, Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's Institutes. The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's Commentaries on the Laws of England, and Roman law ideas regained importance with the revival of academic law schools in the 19th century. As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.
Propagation of the common law to the colonies and Commonwealth by reception statutes
A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.
Other examples of reception statutes in the United States, the states of the U.S., Canada and its provinces, and Hong Kong, are discussed in the reception statute article.
Yet, adoption of the common law in the newly-independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively-enacted civil law under the control of the political process, rather than the common law developed by judges that--by design--were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly-independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later president) John Adams complained that he "suffered very much for the want of books." To boostrap this most basic need of a common law system--knowable, written law--in 1803, lawyers in Massachusetts donated their books to found a law library. A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose."
Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
Decline of Latin maxims, and adding flexibility to stare decisis
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims. [clarification needed]
Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, was under full attack by the late 19th century. Oliver Wendell Holmes, Jr. in his famous article, "The Path of the Law", commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present," but "the man of the future is the man of statistics and the master of economics." In an 1880 lecture at Harvard, he wrote:
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
In the early 20th century, Louis Brandeis, later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in his briefs, and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.
Reliance on old maxims is now deprecated. Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like. The degree to which these external factors should influence adjudication is the subject of active debate, but it is indisputable that judges do draw on experience and learning from everyday life, from other fields, and from other jurisdictions.
1870 through 20th century, and the procedural merger of law and equity
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law as opposed to equity) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail.
In the United States, parallel systems of common law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.
Common law pleading and its abolition in the early 20th century
In the period before statutory reforms made in the 19th century, common law procedure was mainly dependent on forms of action and an increasingly technical method of pleading, known as special pleading.
The reforms of the late 19th century and early 20th century, abolishing the former common law pleading requirements, let a plaintiff initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong, and reduced the need for courts to give attention to technical scrutiny of words as pleaded.
Contrasts between common law and civil law systems
A common law system and a civil law system mainly differ in their sources of law, and in jurisprudence. Common law has evolved from the system that developed in medieval England mainly with the use of writs issued in the name of the king, and aided by commentaries known as "books of authority". Such were either "original writs" directed to the sheriff (authorising a legal action to proceed in the king's common law courts) or prerogative writs. Unlike a common law system, historically civil law systems belong to the Corpus Juris Civilis tradition, including the Institutes promulgated in the year 533 as an introductory students' textbook, beginning: "Justice is the set and constant purpose which gives to every man his due. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust."
Today, a principal difference is that common law is generally uncodified, while countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court. But while in a common law system private law as a whole is not comprised in a Civil Code, the 19th century and early 20th century saw various parts of the general body of common law undergo statutory codification, such as, in the United Kingdom, the Partnership Act 1890, the Bills of Exchange Act 1882, the Sale of Goods Act 1893 and the Marine Insurance Act 1906, and, in England and Wales, the Law of Property Act 1925. In the 1820s, Peel's Acts went some way to codifying much of England's criminal law, but England and Wales remain without a Criminal Code such as a Penal Code in civil law countries.
Common law legal systems in the present day
The common law constitutes the basis of the legal systems of: England and Wales and Northern Ireland in the UK, Ireland, federal law in the United States and the law of individual U.S. states (with the partial exception of Louisiana), federal law throughout Canada and the law of the individual provinces and territories (except Quebec), Australia (both federal and individual states), Kenya, New Zealand, South Africa, India, Myanmar, Malaysia, Bangladesh, Brunei, Pakistan, Singapore, Hong Kong, Antigua and Barbuda, Barbados, Bahamas, Belize, Dominica, Grenada, Jamaica, St Vincent and the Granadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries (except the UK's Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India uses common law except in the state of Goa which retains the Portuguese civil code. Guyana and Saint Lucia have mixed Common Law and Civil Law systems.
The current body of case law of any common law jurisdiction is found in the published law reports of the reasoned judicial decisions delivered for that jurisdiction which resolve previously undecided points of law, or follow, or affirm or overrule, the reasoning in a previous case or line of cases. The reasoning in some of those reported cases will extend or curtail an established legal principle or concept, or determine a principle or concept not previously established, and come to be regarded as "leading cases" or "landmark decisions".
Scotland is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages), founded on the customary laws of the tribes residing there. Historically, Scots common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same although in many matters (particularly those of UK-wide interest) they are very similar.
Scotland shares the Supreme Court (formerly the House of Lords), with England, Wales and Northern Ireland; and the Court's decisions are binding throughout the UK. This has had the effect of homogenising the law in certain areas. For instance, the modern UK law of negligence is based on Donoghue v Stevenson, a case originating in Paisley, Scotland.
States of the United States (17th century on)
New York (17th century)
The state of New York, which also has a civil law history from its Dutch colonial days, began a codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherland was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherland they forced, as a punishment unique in the history of the British Empire, the English imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. The influence of Roman-Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
Under Louisiana's codified system, the Louisiana Civil Code, private law—that is, substantive law between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from Roman law, transmitted through French law and Spanish law, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the Napoleonic Code, as the latter was enacted in 1804, one year after the Louisiana Purchase. However, the two codes are similar in many respects due to common roots.
Louisiana's criminal law largely rests on English common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure.
Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the California Codes in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)
United States federal courts (1789 and 1938)
The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language, but, unlike state courts, do not act as an independent source of common law.
Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution.
In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent, and held "There is no federal general common law," thus confining the federal courts to act only as interpreters of law originating elsewhere. E.g., Texas Industries v. Radcliff, 451 U.S. 630 (1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.
Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); see also International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding); but see National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.
United States executive branch agencies (1946)
Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the Administrative Procedure Act of 1946.
India (19th century and 1948)
After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act of 1858 to this effect, which set up the structure of British government in India. It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government.
Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the United Nations guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.
Indian family law is complex, with each religion adhering to its own specific laws. In most states, registering marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.
Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.[verification needed]
There are 1160 laws as of September 2007.
Canada has separate federal and provincial legal systems. The division of jurisdiction between the federal and provincial Parliaments is specified in the Canadian constitution.
Each province is considered a separate jurisdiction with respect to common law matters. As such, only the provincial legislature may enact legislation to amend private law. Each has its own procedural law, statutorily created provincial courts and superior trial courts with inherent jurisdiction culminating in the Court of Appeal of the province. This is the highest court in provincial jurisdiction, only subject to the Supreme Court of Canada in terms of appeal of their decisions. All but one of the provinces of Canada use a common law system (the exception being Quebec, which uses a civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).
Canadian federal statutes must use the terminology of both the common law and civil law for those matters; this is referred to as legislative bijuralism.
Federal Courts operate under a separate system throughout Canada and deal with narrower subject matter than superior courts in provincial jurisdiction. They hear cases reserved for federal jurisdiction by the Canadian constitution, such as immigration, intellectual property, judicial review of federal government decisions, and admiralty. The Federal Court of Appeal is the appellate level court in federal jurisdiction and hears cases in multiple cities, and unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits.
Criminal law is uniform throughout Canada. It is based on the constitution and federal statutory Criminal Code, as interpreted by the Supreme Court of Canada. The administration of justice and enforcement of the criminal code are the responsibilities of the provinces.
Nicaragua's legal system also is a mixture of the English Common Law and the Civil Law. This situation was brought through the influence of British administration of the Eastern half of the country from the mid-17th century until about 1905, the William Walker period from about 1855 through 1857, USA interventions/occupations during the period from 1909 to 1933, the influence of USA institutions during the Somoza family administrations (1933 through 1979) and the considerable importation between 1979 and the present of USA culture and institutions.
Israel has a common law legal system. Its basic principles are inherited from the law of the British Mandate of Palestine and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the supreme court in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. One of the primary reasons that the Israeli constitution remains unwritten is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the Knesset (which, following the doctrine of parliamentary sovereignty, holds near-unlimited power).
Roman Dutch Common law
Roman Dutch Commons law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana. Roman Dutch common law jurisdictions include South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri-Lanka and Zimbabwe. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French code civil in 1809, however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 17th century such as Grotius and Voet. In practice, the majority of decisions rely on recent precedent.
Alternatives to common law systems
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The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to case law but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries.
Examples of common law being replaced by statute or codified rule in the United States include criminal law (since 1812, U.S. courts have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But note that in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute.
An example of convergence from the other direction is shown in Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, in which the European Court of Justice held that questions it has already answered need not be resubmitted. This brought in a distinctly common law principle into an essentially civil law jurisdiction.
Edward Coke, a 17th-century Lord Chief Justice of the English Court of Common Pleas and a Member of Parliament, wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his Institutes and Reports until the end of the 18th century. His works are still cited by common law courts around the world.
The next definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765–1769. Since 1979, a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.
While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes, Jr. published a short volume called The Common Law, which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process. Law professor John Chipman Gray's The Nature and Sources of the Law, an examination and survey of the common law, is also still commonly read in U.S. law schools.
In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, and so on.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.
Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).
Development of English legal system and case law
Early common law systems
Examples of modern common law systems
Common law as applied to matrimony
Common vs. civil laws
Stages of common law trials
- Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems, Website of the Faculty of Law of the University of Ottawa
- Garner 2001, pp. 177–78
- Lloyd Duhaime. "Common Law Legal Definition". duhaime.org.
- Black's Law Dictionary - Common law (10th ed.). 2014.
1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW
- Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law", 8 Dec. 2008:, retrieved on 7 November 2009.
- Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
- Marbury v. Madison, 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.")
- http://www.britannica.com/EBchecked/topic/188090/English-law ; British History: Middle Ages "Common Law – Henry II and the Birth of a State". BBC. Retrieved 2009-07-23.
- K. G. Balakrishnan (23–24 March 2008). An Overview of the Indian Justice Delivery Mechanism (PDF) (Speech). International Conference of the Presidents of the Supreme Courts of the World. Abu Dhabi. Retrieved 1 August 2012.
India, being a common law country, derives most of its modern judicial framework from the British legal system.
- "Federation of Pakistan v. Bhatti, "in a common law jurisdiction such as ours"" (PDF). Retrieved 2012-02-22.
- "The Common Law in the World: the Australian Experience" (PDF). W3.uniroma1.it. Retrieved 2010-05-30.
- Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, (2015) Bond Law Review, Volume 27.
- "Parliament of Barbados: one of the oldest Constitutions in the Commonwealth". Retrieved 2011-11-06.
- "Legal Dictionary - Law.com". Law.com Legal Dictionary.
- such as Ames, Chitty, Stephen, Thayer and other writers named in the preface of Perry's Common-law Pleading: its history and principles (Boston, 1897)
- Oxford English Dictionary online
- Black's online  entry for "COMMON LAW" on page 345/6.
- Garner 2001, p. 177
- Salmond 1907, p. 32
- Garner 2001, p. 178
- "5. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them." Code of Napoleon, Decree of March 5, 1803, Law 5
- Federal Rule of Civil Procedure, Rule 2 ("There is one form of action—the civil action.") (1938)
- Friedman 2005, p. xix
- "In Suits at common law ... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
- O. W. Holmes, Jr., The Common Law
- Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).
- Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
- The beneficial qualities of the common law's incrementalist evolution was expressed by the future Lord Mansfield, then Solicitor General Murray, in the case of Omychund v. Barker, who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament." I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)
- Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)
- Thomas v. Winchester, 6 N.Y. 397 (N.Y. 1852)
- Statler v. Ray Mfg. Co., 195 N.Y. 478, 480 (N.Y. 1909)
- Cadillac Motor Car Co. v. Johnson, 221 F. 801 (2nd Cir. 1915)
- MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)
- Meister v. Moore, 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")
- E.g., Uniform Commercial Code, Article 2, on Contracts for the Sales of Goods
- Model Penal Code as adopted in several states, for example, New York's Penal Law
- Graham Hughes, Common Law Systems, § VII, Morrison 1996, pp. 23–24
- To consider one example, Lemon v. Kurtzman, 403 U.S. 602 (1971), resolves one part of the tension between the "establishment" and "free exercise" clauses of the First Amendment with a three part test: a government-sponsored message violates the Establishment Clause if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion..
- Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, ___ (1968)
- E.g., South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc in relevant part) (explaining order of precedent binding on the United States Court of Appeals for the Federal Circuit); Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc) (after the Eleventh Circuit was split off from the Fifth Circuit, adopting precedent of Fifth Circuit as binding until overruled by the Eleventh Circuit en banc: "The [pre-split] Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule."); Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office).
- 83 Cr App R 191, 73 Cr App R 266
- Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
- See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law" (2006).
- Theodore Eisenberg & Geoffrey P. Miller, The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies’ Contracts (2008). New York University Law and Economics Working Papers. Paper 124, http://lsr.nellco.org/nyu_lewp/124 (based on a survey of 2882 contracts, "New York law plays a role for major corporate contracts similar to the role Delaware law plays in the limited setting of corporate governance disputes. ... New York's dominance is striking. It is the choice of law in approximately 46 percent of contracts," and if merger contracts excluded, over half)
- Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract—[merger] trust agreements. ... The dominance of Delaware for this specialized type of contract is apparently due to the advantages and flexibility which Delaware's business trust statute.")
- Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
- Osley, Richard (2008-11-23). "London becomes litigation capital of the world". The Independent. London.. London is also forum for many defamation cases, because U.K. law is more plaintiff-friendly—in the United States, the First Amendment protection for freedom of the press allows for statements concerning public figures of questionable veracity, where in the U.K., those same statements support a judgment for libel.
- U.S. Internal Revenue Service, Taxpayer Advocate Service, 2008 Report to Congress, http://www.irs.gov/pub/irs-utl/08_tas_arc_msp_1.pdf
- The History of English Law before the Time of Edward I, 2 vols., on line, with notes, by Professor S. F. C. Milsom, originally published in Cambridge University Press’s 1968 reissue.
- F. W. Maitland, The Forms of Action at Common Law, 1909, Lecture I, online 
- Black's Law Dictionary (1968 edition) online  entry for "COMMON LAW", on page 345/6.
- David John Ibbetson, Common Law and Ius Commune p.20 (2001) ISBN 978-0-85423-165-2
- Documents from Medieval and Early Modern England from the National Archives in London.
- Publications of the Selden Society
- Jefferson, Thomas (February 10, 1814). "Letter to Dr. Thomas Cooper". Retrieved 11 July 2012.
Authorities for what is common law may therefore be as well cited, as for any part of the Lex Scripta, and there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present; where we detect them endeavoring to make law where they found none, and to submit us at one stroke to a whole system, no particle of which has its foundation in the common law. For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Carta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it.
- Jefferson, Thomas (June 5, 1824). "Letter To Major John Cartwright". Retrieved 11 July 2012.
I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.
- E.g., Lectric Law Dictionary: That which derives its force and authority from the universal consent and immemorial practice of the people. It is not used in legal practice contexts.
- see Oliver Wendell Holmes, Jr., The Common Law, Lecture I, sec. 2, "In Massachusetts today...there are some (rules) which can only be understood by reference to the infancy of procedure among the German tribes."
- Herbermann, Charles, ed. (1913). "Common Law". Catholic Encyclopedia. New York: Robert Appleton Company.
- Black's Law Dictionary - Common law (10th ed.). 2014.
3. General law common to a country as a whole, as opposed to special law that has only local application.
- "The National Archives - Exhibitions - Citizenship - Citizen or subject". nationalarchives.gov.uk. 26 March 1482.
- Jeffery, Clarence Ray (1957). "The Development of Crime in Early English Society". Journal of Criminal Law, Criminology, and Police Science. The Journal of Criminal Law, Criminology, and Police Science, Vol. 47, No. 6. 47 (6): 647–666. doi:10.2307/1140057. JSTOR 1140057.
- Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law
- T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260-261
- BUSL, Legal History: The Year Books
- Cambridge History of English and American Literature The Year Books and their Value
- E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
- E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
- E.g., George E. Woodbine (ed.), Samuel E. Thorne (transl.), Bracton on the Laws and Customs of England, Vol. I (Introduction) 46 (1968); Carl Güterbock, Bracton and his Relation to the Roman Law 35–38 (1866).
- Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24.
- Peter Stein, Continental Influences on English Legal thought, 1600–1900, in Peter Stein, The Character and Influence of the Roman Civil Law 223 et seq. (1988).
- See generally Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007.
- Thinking like a lawyer: an introduction to legal reasoning (Westview Press, 1996), pg. 10
- Social Law Library, Common Law or Civil Code?, Boston Mass.
- Holmes, Jr., Oliver Wendell (1897). "The Path of the Law". Harvard Law Review. 10 (8): 457, 469. doi:10.2307/1322028.
- Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).
- Roper v. Simmons, 543 U.S. 551 (2005) (holding unconstitutional to impose capital punishment for crimes committed while under the age of 18, based on "evolving standards of decency," largely based on other nations' law)
- Salmond 1907, p. 34
- Lobban, Michael "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery". Law and History Review, 2004 (University of Illinois Press) . ISSN 0738-2480.
- E.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("[W]e [the U.S. Supreme Court] have understood that the right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted. In keeping with our longstanding adherence to this 'historical test', we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was. If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." citations and quotations omitted, holding that interpretation of the scope of a patent had no analogy in 1790, and is thus a question to be decided by a judge, not a jury)
- Handbook of Common Law Pleading, Koffler and Reppy, 1969, online
- The Register of Writs: Seed-Bed of the Common Law, Frederick Bernays Wiener.
- "The writ became formalized by the reign of Henry II, and precedentsre are given by Glanvil. The writ process was at that date the foundation of all civil justice in the king's court, and of much in the lower courts." James Williams, Writ, Encyclopaedia Britannica, 11th edition.
- 'Introduction: Original writs', in Final Concords of the County of Lincoln 1244-1272, ed. C W Foster (Horncastle, 1920), pp. xxxi-xxxvi. British History Online (accessed 3 June 2016].
- Justinian, Institutes, J.B. Moyle trans. (Oxford, 1911, with some emendations by CD.)
- The Common Law and Civil Law Traditions, Robbins Collection, University of California at Berkeley.
- "leading case: one that has settled some important point and is frequently cited as a precedent", OED 1933 ed., giving source as title of F. Pollock's Leading Cases done into English 1st edn 1877.
- "Landmark judicial decisions changed the Constitution as well as everyday life. Their impact still echoes." India Today
- Stair Memorial Encyclopedia
- Swift v. Tyson, 41 U.S. 1 (1842). In Swift, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. Erie v. Tompkins, 304 U.S. 64 (1938). Erie overruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive law as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law", the key word here being general. This history is elaborated in federal common law.
- City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act, in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); Milwaukee v. Illinois, 451 U.S. 304 (1981)
- "Official, India". World Digital Library. 1890–1923. Retrieved 2013-05-30.
- Glenn 2000, p. 255
- Glenn 2000, p. 276
- Alexander 1952, pp. 289–300.
- Viswanatha, S.T., International Law in Ancient India, 1925
- Glenn 2000, p. 273
- Jain 2006, p. 2
- "Indian Legislation". Commonlii.org. Retrieved 2010-05-30.
- Constitution Act, 1867, s. 91(10), (18)
- "Canadian Legislative Bijuralism Site At the Crossroads of our Legal Diversity". Canada.justice.gc.ca. 2009-08-05. Retrieved 2010-05-30.
- "Federal Court of Appeal - Home". Fca-caf.gc.ca. Retrieved 2013-08-17.
- "Supreme court decisions database".
- Mahler 2004, p. 126.
- Elaine Forman Crane, Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America. Ithaca, NY: Cornell University Press, 2011.
- Friedman, Lawrence Meir (2005). A History of American Law (3rd ed.). New York: Simon and Schuster. ISBN 978-0-7432-8258-1.
- Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 978-0-19-514236-5.
- Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 0-19-876575-4.
- Ibbetson, David John (2001). Common Law and Ius Commune. Selden Society. ISBN 978-0-85423-165-2.
- Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.). Nagpur: Wadhwa & Co. ISBN 978-81-8038-264-2.
- Milsom, S.F.C., A Natural History of the Common Law. Columbia University Press (2003) ISBN 0231129947
- Milsom, S.F.C., Historical Foundations of the Common Law (2nd ed.). Lexis Law Publishing (Va), 1981) ISBN 0406625034
- Morrison, Alan B. (1996). Fundamentals of American Law. New York: Oxford University Press. ISBN 978-0-19-876405-2.
- Nagl, Dominik (2013). No Part of the Mother Country, but Distinct Dominions - Law, State Formation and Governance in England, Massachusetts and South Carolina, 1630-1769. Berlin: LIT. ISBN 978-3-643-11817-2.
- Potter, Harry (2015). Law, Liberty and the Constitution: a Brief History of the Common Law. Woodbridge: Boydell and Brewer. ISBN 978-1-78327-011-8.
- Salmond, John William (1907). Jurisprudence: The Theory of the Law (2nd ed.). London: Stevens and Haynes. OCLC 1384458.
|Wikiquote has quotations related to: Common law|
- The History of the Common Law of England, and An analysis of the civil part of the law, Matthew Hale
- The History of English Law before the Time of Edward I, Pollock and Maitland with notes by S. F. C. Milsom
- Select Writs. (F.W.Maitland)
- Common-law Pleading: its history and principles, R.Ross Perry, (Boston, 1897)
- The Common Law by Oliver Wendell Holmes, Jr.
- The Common Law by Oliver Wendell Holmes Jr. at Project Gutenberg
- The Principle of stare decisis American Law Register
- The Australian Institute of Comparative Legal Systems
- The International Institute for Law and Strategic Studies (IILSS)
- New South Wales Legislation
- Historical Laws of Hong Kong Online – University of Hong Kong Libraries, Digital Initiatives
- Maxims of Common Law from Bouvier's 1856 Law Dictionary