Talk:Common law

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Canadian criminal law[edit]

The Canada section of the article has this sentence: "Criminal law, which is uniform throughout Canada, is based on the common law in all provinces." This is internally-contradictory. Almost by definition, you can't have both "uniform throughout Canada" and "based on common law in all provinces." Does this mean that there is a Canada-wide statute, and the federal and provincial courts have interpretive authority? (Analogous to federal criminal statutes in the U.S.) Or something else? Boundlessly (talk) 18:48, 28 August 2010 (UTC)

I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law. This is a tension which runs throughout this article, in my opinion. In any event, I've modified this section of the article accordingly. Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)
The issue was resolved after August 2010, by conversations with Canadian lawyers. If I garbled it, please fix it, but the August 2010 comment is no longer relevant.Boundlessly (talk) 23:56, 9 July 2011 (UTC)
Powers of Canadian federal parliament is not highly relevant to common law. I moved that to footnote.Boundlessly (talk) 00:00, 10 July 2011 (UTC)

Common law as a foundation for commercial economies[edit]

In my humble opinion The "Common law as a foundation for commercial economies" doesn't adhere to the Neutral Point of View Policy of Wikipedia. Carel.jonkhout (talk) 04:31, 4 August 2010 (UTC)

Concur. Whomever wrote that clearly hasn't litigated New York contract law, which is an appalling mess compared to California, Washington, Texas or any other large state.--Coolcaesar (talk) 04:15, 6 August 2010 (UTC)
Agree - particularly when London, England is just as often chosen in, you know, the rest of the world. Particularly relating to maritime law. (143.167.143.161 (talk) 11:56, 6 August 2010 (UTC))
I'm a Massachusetts and New York lawyer, and do lots of international contracts. The only time I've *ever* seen a contract with a choice of law clause that picks a jurisdiction with which neither party has strong contacts, the choice of law is New York. But that -- oh, that situation I've seen/negotiated dozens of times. I worked on a Japan/France deal (nobody even in the U.S.!) that picked New York. Lots of U.S. deals with neither party in New York pick New York. I've never seen a California or U.K. choice of law for a contract unless at least one of the parties has its principal place of business (either for the company as a whole or for the subject matter of the contract) in California or U.K.
I fully concur that other fora are preferred for many types of litigation, especially for admiralty and defamation. But litigation is after the fact, the focus of this section is contracts, that is, commercial choices made before the fact. For defamation (which is not generally commercial law and thus not relevant here), London is the choice for pure forum shopping for substantive law (no pesky NY Times v Sullivan problem), not whether it's a deep predictable common law jurisdiction. Forum choice for non-commercial tort litigation doesn't inform about choice of law clauses in international commercial contracts. For admiralty, London is oft-chosen -- but for exactly the reason noted -- admiralty is commercial law, and London is chosen because of the depth of London common law.
The article accurately states the reality that I deal with, and that dozens of other lawyers see, including some London and Paris folks that I know. Are the statements in the article about choice of law clauses in contracts (not litigations) inaccurate? Boundlessly (talk) 20:40, 27 August 2010 (UTC)
Your experience is not normative. The fact you have are a US based lawyer means you will have little visibility of what goes on in the rest of the world. If you've never seen London as choice of jurisdiction for contract, that speaks of your inexperience and little else. The reality you deal with is not necessarily objective reality, it is just yours. London is the world's pre-eminent centre for international litigation. Masterrows (talk) 01:00, 20 December 2011 (UTC)
Masterrows: Thanks for making the point. The reason London is oft-chosen for commercial litigation is because of its depth of common law in most areas of international law. However, the effect of New York is even stronger in pure commercial contracts. Commercial parties choose jurisdictions with rich bodies of commercial law for commercial contracts (that is, agreements before the dispute breaks out), and for commercial litigation. But most often, a litigation plaintiff chooses forum for a reason unrelated to predictability -- often, precisely because the forum is a departure from the norm. Think two of the cases you studied in first year law school, Erie v Tompkins (of four possible bodies of law, three had substantive rules that would have resulted in Tompkins losing, so he chose Pennsylvania federal corut), Keeton v. Hustler Magazine, Inc. (in the other 49 states, the statute of limiations on defamation had run, only New Hampshire's statute of limiations was long enough to permit the case to be brought) -- both were forum shopping cases.
But for commercial contracts, most of the forum-shopping concerns are much attenuated. Commercial contracts choose a body of law that is fair and predictable, because both parties want a leval playing field for all issues, not just the precise issues in the one specific case. That's why this section focuses on prospective contracts, not retrospective litigation.
Take a look at the empirical data in the Eisenberg & Miller paper.
"New York’s dominance is striking. It is the choice of law in approximately 46 percent of contracts. New York’s share rises to over 50 percent if one excludes the merger contracts in which Delaware dominates by being the choice of law in over one-third of the agreements. With respect to all contract types combined, Delaware is a distant second with about 15 percent. After Delaware, no state accounts for even ten percent of the choices of law and only California even exceeds five percent."
Boundlessly (talk) 13:53, 29 January 2012 (UTC)
I added a POV-section tag to the section (was going to add a POV-check|section, but found out there's already a discussion here). What I most object to is that it reeks of "common law is great, other types are bad, for economics". Jalwikip (talk) 08:30, 23 January 2012 (UTC)
Jalwikip: strawman argments aren't helpful. Empirical data is. Take a look at the Eisenberg & Miller paper.Boundlessly (talk) 13:53, 29 January 2012 (UTC)

Downgraded an undiscussed Good Article assessment[edit]

I notice that an IP address had added a Good Article assessment to the WikiProject Law tag. As I have not seen any indication that this article has ever undergone a Good Article nomination in the archived talkpages, I will assume it was likely vandalism. I have assessed the article as B, consistent with the other tags. Safiel (talk) 23:39, 24 March 2010 (UTC)

First ethnic & minority rights in England[edit]

When was the first ethnic & minority rights (culture education political language rights) declared in England? Don't confuse it with immigration and citizenship laws/acts! Can you write me? Many Thanks! mail: stears333@gmail.com —Preceding unsigned comment added by 84.2.100.11 (talk) 07:08, 19 October 2010 (UTC)

Medieval Islamic law[edit]

Having watched this "medieval Islamic law" section evolve for about two years, I am now reasonably convinced (though without reading the underlying articles, e.g. Makdisi, Gaudiosi, etc.) that this section on Islamic influences doesn't belong here.

The argument made in this section seems to be a classic instance of post hoc ergo propter hoc fallacy, "after, therefore because of," speculative at best, and not very instructive.

Looking at the dates, knowing the little I know of Roman law, and so on, it seems that the common law features attributed to Islamic law were either borrowed from Roman law (which is nearly a millenium older than Islamic), or developed independently by parallel evolution - certain legal constructs are such good ideas, and so necessary, that they get invented and reinvented independently in multiple legal cultures, without any derivation. For example, I have no doubt whatsoever that Chinese law has had contracts for millenia, entirely independent of either Roman or Islamic traditions, and little doubt that the Chinese had a professional class of lawyers with training academies, and constructs parallel to trusts (at the very least, parents must have acted as trustees since Neanderthal times). The Hebrew Pentateuch clearly lays out legal reasoning by precedent and analogy, again hundreds of years before there was an Islam to have an Islamic law. The point is that good ideas recur, and mere similarity, without more, is not evidence of derivation (I'm an IP lawyer -- I deal with this all the time)!

I vote to remove this section from this article (the proponents would be encouraged to move the content to a new independent article, with a link from here). This section and its support seem so speculative that it dilutes the rest of the article. Boundlessly (talk) 15:05, 25 November 2010 (UTC)

I concur that the section is nonsense and should be removed. --Coolcaesar (talk) 20:01, 25 November 2010 (UTC)
I also think it should removed. The contributor of the section was the subject of this RfC/U [2], which I would like to draw everyone's attention to. It was additions like these that led to the RfC/U and subsequent cleanup. Athenean (talk) 22:50, 29 November 2010 (UTC)
See WP:Jagged 85 cleanup for an overview. I have no particular knowledge within this field, but text like "...whether English common law was inspired by medieval Islamic law" is exactly the type of POV cherry picking demonstrated for this user, and my feeling is that the section should be removed. It is clear that there has been some speculation on possible Islamic origins of common law, but in the absence of some well accepted and reliable sources, it is reasonable to assume that there is not sufficient evidence of a causal connection to warrant the current section. The "good ideas recur" point by Boundlessly above is precisely correct: it would be amazing if no similarity between two legal systems could be found. Johnuniq (talk) 02:42, 30 November 2010 (UTC)
I found the Makdisi article. The reasoning is very naive. The initial thesis is "the legal institutions of the common law fit within a structural and functional pattern that is unique among western legal systems and certainly different from that of the civil law. The coherence of this pattern strongly suggests the dominating influence of a single preexisting legal tradition rather than a patchwork of influences from multiple legal systems overlaid on a Roman fabric. The only problem is that no one preexisting legal tradition has yet been found to fit the picture. This Article looks beyond the borders of Europe and proposes that the origins of the common law may be found in Islamic Law. "
Oh pifflesnort. This is the same argument creationists use -- "The structure is so organized, there must be a God." Baloney, if the common law structure didn't work, it would have gone extinct long ago by natural selection. If common law had been imported wholesale from Islamic Law, the origins would not be "shrouded in mystery" as Makdisi states, the footprints would be much clearer. As every first year law student will tell you, there is no "structural and functional pattern," the common law is a collection of ideas, with amendments and subsequent repairs as defects are identified, that works well because of evolutionary processes, not part of a preconceived "pattern."
It's gone. Boundlessly (talk) 12:46, 30 November 2010 (UTC)
Thanks, but we have a problem. The material was removed last May, and was re-added in this edit by 99.246.101.166 at 22:33, 21 November 2010. In other words, this article will need indefinite monitoring to avoid efforts by enthusiasts. I noticed this because I went to update Cleanup2 to say this article had been cleaned, when I saw that another editor had already checked the article as being clean last June. Johnuniq (talk) 04:05, 1 December 2010 (UTC)

Is it just me that see's this or are the 'basic fundamentals' being blurred here? Said fundamentals being: The enormous & distinctive differnces existing between that which is called 'legal' and that of what is Our Law? — Preceding unsigned comment added by HayleyMarrie13 (talkcontribs) 04:48, 21 December 2011 (UTC)

Common Law versus Case Law[edit]

Common law should not be conflated with case law. They are actually two separate concepts. By popular usage any law that was not created by a statute or regulation is often called common law.

"COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people." Bouvier's Law Dictionary, 1856 Edition.

Case law, or judge-made law, while valuable is a means to establish certainty by setting precedent and describing the way the judge arrived at a decision. CommonLaw1215 (talk) 17:29, 24 December 2010 (UTC)

You have no idea what common law or case law is. Go to law school. --Coolcaesar (talk) 17:33, 24 December 2010 (UTC)
Be polite, Assume good faith, Avoid personal attacks, Be welcoming. You've certainly hit all the guideline points. Since law schools in the United States teach case law, how would one learn about common law in law school? CommonLaw1215 (talk) 18:06, 24 December 2010 (UTC)
Dear user "CommonLaw1215": This is from Black's Law Dictionary:
Case law. "The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. See Common law." --- Black's Law Dictionary, p. 196 (5th ed. 1979) (bolding added).
Common law. "[ . . . ] the common law comprises the body of those principles and rules of action [ . . . ] which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts [ . . . ] and, in this sense, particularly the ancient unwritten law of England." --- Black's Law Dictionary, p. 250-251 (5th ed. 1979) (bolding added).
"'Common law' consists of those principles [ . . . ] which do not rest for their authority upon any express and positive declaration of the will of the legislature." --- Black's Law Dictionary, p. 251 (5th ed. 1979).
To "CommonLaw1215": There are some nuances, but the terms "case law" and "common law" are often roughly interchangeable as technical legal terms. You seem to be implying that you believe that "since law schools in the United States teach case law", a student in those law schools would not learn about "common law". With all due respect, that would be a nonsensical idea. Famspear (talk) 23:55, 24 December 2010 (UTC)
Famspear, I commend your earnest good faith in trying to explain these basic concepts, but the question "how would one learn about common law in law school?" is so silly that it's obvious trolling. Best to point that out and then ignore the troll. --Coolcaesar (talk) 17:31, 25 December 2010 (UTC)
We had a discussion of the Bouvier's definition a couple years ago, buried in the Talk archive somewhere. It's got three problems. (a) It's too imprecise to mean anything, (b) It's wrong (both underinclusive and overinclusive), and (c) it doesn't conform to any usage today (I can't opine whether it was correct or not in 1853, but it has no relationship to any present-day reality). Boundlessly (talk) 23:14, 6 January 2011 (UTC)
And just to pile on -- I agree with Famspear and Coolcaesar that the opening remarks of CommonLaw1215 are -- oh lets not use that word no matter how applicable it might be, let's say -- uninformed and uninformative. I share their exasperation at the morons that think that somehow God gave them a unique revelation of truth, yet that revelation has no relationship to reality of how parties order their relations under contract, judges decide cases, or legislatures make statutes. If a person's conception of "common law" doesn't conform to those three realities, then that conception is just -- uninformed and uninformative.
The remarks to which Famspear and Coolcaesar are reacting contain their own rebuttal presumption of good faith. Junk from crackpots need not be welcomed. Boundlessly (talk) 02:46, 27 January 2011 (UTC)

Origin of Common Law[edit]

I read the discussion under Medieval Islamic Law, but my comments don't really relate to that.

When looking for the origin of law, one can only go back as far as recorded history, possibly the Code of Hamurabi.

The very earliest law that we know of was decreed by kings like Hamurabi. While kings could decree whatever they wanted to, still king-made law generally accepted some principles of right and wrong.

Since Mosaic Law (law of Moses) was the earliest, as far as I can tell, known written law that didn't come from a king, one might consider Mosaic Law the genus of the common law.CommonLaw1215 (talk) 17:54, 24 December 2010 (UTC)

  • Uninformed and uninformative. No further comment. Boundlessly (talk) 02:47, 27 January 2011 (UTC)

Section numbering 1-4[edit]

Is it necessary to number first section's subsections like this? I think they could be removed, the table of contents already assigns numbered decimal bullets automatically as it is, and it complicates and lengthens using section links unneccessarily. DB (talk) 19:17, 10 April 2011 (UTC)

Yes. The term "common law" has several definitions. Throughout the body of the article, when the difference makes a difference, the article specifies which of the several definitions is being invoked. 02:23, 24 April 2011 (UTC) — Preceding unsigned comment added by Boundlessly (talkcontribs)

Canada[edit]

There are two statements in the article about Canada that I'm pretty sure are false, or at least misleading.

Criminal law, which is uniform throughout Canada, is based on the common law as interpreted by the Supreme Court of Canada.

It should at least be noted that criminal law was codified as the Criminal Code, and there are no common law crimes except contempt of court.

The mid-tier Federal Court of Appeal is a single court that sits and hears cases in multiple cities, and thus mid-tier decisions have precedential value throughout Canada (that is, unlike the United States, Canada is not divided into appellate circuits).

The Federal Courts only have jurisdiction over certain areas of law. Most cases would progress from a provincial trial court, to a provincial superior court, to the provincial court of appeal, and finally to the Supreme Court of Canada. --yycguy81 (Talk) 15:24, 27 May 2011 (UTC)

I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law. This is a tension which runs throughout this article, in my opinion. In any event, I've modified this section of the article accordingly. Also, I don't think that the comments on Federal Court jurisdiction were all that helpful, so I've just added a link to the Canadian court system article.Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)

Incredibaly biased.[edit]

Well this shouldn't come as a surprise, considering that this is the english wiki but it is getting absurd.

The whole part about common law being more clear than civil law is BS and just plainly wrong. Abortion and drugs are the best example. A vague US analogue law, where the final verdict for a substance is done by a court and until a specific case and court decision exists one cannot say with certainty whether a new substance is illegal or not, is impossible in civil law systems. Every substance (and action, in other aspects of law) is, with 100% certainty legal or illegal. And if it is illegal the minimum and maximum punishments are clearly defined. Everyone can look up the law and inform himself on the legality of his actions and the possible risks. — Preceding unsigned comment added by 141.53.210.36 (talk) 19:17, 20 July 2011 (UTC)

The portion of the article you're referring to is specifically addressing the issue of contractual law, where the common law is generally much clearer than civil law because there's such an enormous body of case law in which it's easier to locate closely analogous cases. For example, even though many portions of the UCC are notoriously difficult to understand, one can find decisions in which they were authoritatively interpreted, and in turn, can rely upon those decisions in drafting contracts. In civil law systems, the lack of stare decisis greatly reduces predictability, which is not good for parties to commercial contracts, who want their lawyers to assure them that a particular clause will or will not be enforceable if the deal goes south and everyone hires lawyers and starts suing each other. --Coolcaesar (talk) 12:09, 21 July 2011 (UTC)

I'm sorry, but I must agree with the user above. The section is very biased because it sounds like the common law is great and all all non-common law systems have no certainty of law whatsoever. The truth is, it all depends on the country and how far developed its legal system is. It does not depend on the common law/civil law distinction. In fact, in most Western European civil law jurisdiction there is just the same amount of certainty and predicability as in common law jurisdictions, sometimes even more. This is because the statutes are often more precise, whereas common law statutes often refer to vague terms such as "reasonable" etc. and leave the same to the courts. It is true that also legislators in civil law jurisdictions can never foresee every possible legal problem, but in this case civil law systems have the same abundant amount of case law and scholarly writings as common law systems. Although there is no formal doctrine of stare decisis, civil law systems will still usually obey supreme court judgments etc. and therefore come to a relative uniformity of decisionmaking. Furthermore, in spite of stare decisis, common law judges will still be able to distinguish precedents they don't want to apply, or just make a set precedent for what they perceive as a new legal problem. Then there will be a reason for the losing party to cry just as well as in civil law systems. As a supporting argument, you may also refer to the number of appeals and cases that get overturned upon appeal. Although I don't have statistical numbers, I suppose that they are roughly the same in both civil law and common law jurisdictions. That proves that in both legal systems, different courts can have different opinions on the law in a case that comes before them.

PS: Also the chapter on "adversarial vs. inquisitorial system" is very biased. The article purports that judges from jurisdictions with an inquisitorial procedural law (again, it is different in every jurisdiction) are biased and not neutral because they only listen to the magistrate judge and not the parties. Of course, this is false. Judges in inquisitorial systems are neutral and impartial as well. In fact, neutrality of courts is a basic principle in every state that observes the rule of law and human rights.141.70.80.5 (talk) 00:24, 29 October 2014 (UTC)

The article reads as if sourced mainly from traditionally one-sided, old-fashioned textbooks addressed to students preparing for legal practice in exclusively common law jurisdictions, written by authors not having in-depth knowledge of comparative jurisprudence, or who have never had to consider practice in Civil Law jurisdictions. From the point of view of modern legal practice (and legal education), it is out of date. This point is usefully summarised in "Research Myths about Common Law & Civil Law Jurisdictions": The reality is that many lawyers in civil law jurisdictions do begin their research in cases and many lawyers in common law jurisdictions begin their research in legislation. Attorneys in both jurisdictions ultimately must consult all sources of law to do thorough research. [3]. See also the comments[4]. Qexigator (talk) 08:34, 29 October 2014 (UTC)

Reception of English Law[edit]

I've added a section detailing the reception of English law in Canada. I've also deleted the reference to Canada in the comments about reception statutes as a step to decolonization, as that is not accurate. In those Canadian jurisdictions that have reception statutes, they were enacted when colonies first came under British or Canadian control, as I have summarised. Reception statutes were not a step to decolonization in Canada; rather they were part of the initial steps of setting up the legal system in the new colonies.

I also added some headings to the sections on reception in the US, Hong Kong and other British colonies.

I would be interested to see some cites to the section stating that reception statutes were a step towards decolonization in other British colonies, as I'm not sure it's as neat and tidy as that passage suggests.Mr Serjeant Buzfuz (talk) 12:16, 22 July 2011 (UTC)

An admiralty case[edit]

In the last quarter of XXth century, during a british navy exercise in the high seas of the Atlantic ocean, a Vertical Take Off and Landing Harrier aircraft lost contact with its fleet; approaching the end of its fuel reserves, the pilot spotted an spanish flagged container merchantship, and, being a top quality professional, he managed to make a Vertical Landing on the ship's deck, so saving the high cost airplane, and his own life. The Sea laws supposedly give the ship who rescues in high seas another ship, a right to a part of the price of the rescued ship as a compensation for saving both property and lives. The british government refused to acknowledge the "landing" of the aircratf on the ship as a "sea rescue", and when the operator of the ship presented the case in the UK based admiralty court, they sentenced that this was not a sea rescue, and refused the ship owner and the captain the monetary compensation they claimed for saving both the pilot and the airplane. This sounds like a prevarication, and the only optimist teaching from this event would be the comment from the captain in introducing the story, when he called the ship owner to let him know what had happened: "You'll wet your pants laughing...".

The ship owner almost certainly lost the case because the ship didn't actually do anything other than be there at the time. In order to claim, the ship would have needed to have actively participated in some form of 'rescue' which, from what you state above, it did not do.
Being entitled to an award entails a person to have done something that he/she would not have done anyway, i.e., he would have needed to have gone out of his/her way to help.
... just being there doesn't count. You need to make some actual effort to help. I suspect that the ship owner may have won if the ship had changed course in order to assist the aircraft, but from what you include in your description I would guess that this was not so. Presumably when the aircraft was subsequently re-fuelled it was then flown off, so it may well have been considered that it was never 'in distress' as the fuel on board was sufficient to allow it to alight on the sighted ship without danger to the pilot or aircraft. And for the ship, presumably there was little or no loss involved. Think of it this way, if you are flying an aeroplane and you notice that you are running low on fuel, and you just happen to be flying over an airport, then what do you do - you land. And that's what the Harrier pilot apparently did. Similarly, if you are passing a burning building and someone jumps from a high window and lands on you, and you thereby break their fall, it doesn't mean that you deliberately saved their life. You may have actually done so by breaking their fall, but you didn't actually do anything. You were just there.
The situation would have been similar if it had been a helicopter low on fuel, in which case, I would surmise that that would have been dis-allowed by the court as well, as if it had been low on fuel the landing-on would be deemed a normal, prudent thing to do. Again, if the ship had done nothing but steam a steady course then no loss in time or money to the ship owner would have been involved and so the matter of a 'rescue' would never have arisen.
... However I would have thought that some sort of un-official 'thank you' might have been sent/given to the ship's captain and crew, simply for 'being there' at the right time. — Preceding unsigned comment added by 80.7.147.13 (talk) 15:30, 21 May 2012 (UTC)

Abolition of pleading requirements[edit]

The paragraph discussing abolition of the common law pleading requirements is incredibly misleading. Nowhere is it stated in which jurisdictions this occurred. But by inclusion of the phrase, "'a short and plain statement' of facts" (hereafter "notice pleading) that constitute an alleged wrong, it is discernible that it is the Federal Rules of Civil Procedure under discussion.

For the reasons discussed below and because inclusion is tangential to the article's topic, I recommend that the paragraph be removed.

While most if not all state jurisdictions have adopted the Federal Rules to some extent, many states declined to follow the relevant change in the Federal Rules and still require more detailed "ultimate fact" pleadings; e.g., Oregon.

Moreover, even under the Fed.R.Civ.P., Rule 9 establishes specific exceptions to the "short and plain statement" of facts, requiring particularity in pleading certain matters and times and dates.

And as any federal court practitioner well knows, the case law is riddled with claims and defenses where the courts have decided that far more particularity is required than a "short and plain statement" of the facts. For example, in civil rights cases the plaintiff must plead facts that negate the affirmative defense of qualified immunity.

To top it off, it is generally acknowledged that the Supreme Court in effect abolished notice pleading in Bell Atlantic Corp. v. Twombly, expressly overruling the far more lax pleading requirements set in the 1957 case, Conley v. Gibson.

I see no way to salvage the paragraph without writing a near-book length article. Marbux (talk) 06:38, 20 May 2012 (UTC)

Twombly was more a rule 9 case than a rule 8 case, and it (at least, as discussed in my law school class last semester), it didn't overrule Conley. However, the one-sentence paragraph is much too simplistic. — Arthur Rubin (talk) 15:55, 21 May 2012 (UTC)
Concur with both of you re removal. Looks like it was written by a pro per. --Coolcaesar (talk) 04:38, 22 May 2012 (UTC)
Coolcaesar is correct, the origin of this section was a crackpot pro se, Oatmealo if I recall. I edited it down to get it to say something meaningful (even a stopped clock is right twice a day, and I trusted Oatmealo for the basics of pre-1939 common law pleading, so I didn't delete his contribution entirely). However, these comments suggest that maybe we need to recognize another step in the history. Is this the right framework? There are three historical periods: the nineteenth-century-and-earlier period when pleading was crazy technical. the 1938 to 2008 period when the emphasis was on "short" but not necessarily "Plain" or "notice," and the post-Twombly period with the pendulum swinging back toward "notice."
Based on my limited knowledge of the relevant history, maybe the right approach is to not delete the section, but to clarify that the pendulum swings, that post-Twombly the complaint has to plead underlying facts, etc. 76.19.143.148 (talk) 06:09, 29 June 2012 (UTC)

Saxon Origins of English Common Law[edit]

Well, since someone didn't like my edit, and for some reason thinks that my sources don't back it up, here's the sentence that I added:

Saxon (pagan) common law was introduced into England about the middle of the fifth century, hundreds of years prior to the introduction of Christianity.

The current History section makes it seem as if Alfred "invented" common law, and furthers the erroneous conclusion that English common law has always been Christian. In fact, I sourced the sentence to two different writings of Thomas Jefferson, separated by more than a decade, where he specifically discussed the pagan origins of English common law as originating with the invading Saxons, and the idea "...that Christianity neither is, nor ever was a part of the common law."[http://www.stephenjaygould.org/ctrl/jefferson_cooper.html] Here are the two excerpts, with links to the full texts:

(1) "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 Charta, 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." [5]
(2) "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." [6]

So yes, it certainly "makes sense," and yes, my sources do indeed back up the sentence. --Bryon Morrigan -- Talk 22:17, 11 July 2012 (UTC)

The sentence itself was a bit poorly-worded, but the idea, that English common law originated in the middle of the 5th century CE with the pagan Saxons, is certainly something that should be on this page, as currently it promotes the idea that it has always been rooted in Christianity, which is obviously absurd. --Bryon Morrigan -- Talk 22:29, 11 July 2012 (UTC)

My concern is that whatever law existed in Fifth Century Anglia wasn't "common law" as we understand the term today. With the explanation here, I see one part of your point (that origins of common law are pre-Norman-conquest), but not others (what implication is there that common law is tied to Christianity?). Maybe there's a sentence that makes your point but doesn't create the problem that troubles me? I realized that Mr. Jefferson's statements do illuminate a useful point, so I added them in [| Connotation 4] at the top of the article. Does that get where you want to go? Boundlessly (talk) 17:38, 17 July 2012 (UTC)

I don't know that that is what Jefferson (the source) was really saying (...especially since the Norman Conquest was a few centuries later). The implication now is that English "Common Law" originated with Alfred, and Alfred used "Christian principles" and the "Old Testament" in his Doom Book. This is often used by Christians to "prove" that Common Law is inherently Christian. However, historians know that the system of Common Law derives from the Saxons, and their tribal governments. I figured that it would be best to hear it from Jefferson's "mouth," as it were, particularly since he felt so strongly about the subject, and the need for Americans to understand that our Anglo-American system of laws originates with Pagans, rather than Christians. --Bryon Morrigan -- Talk 20:18, 18 July 2012 (UTC)

Formatting edits[edit]

Born from an effort at an abundance of discussion, I am proposing the following changes, which have have been repeatedly reverted by one editor:

  • That bold titles not be linked, per WP:CONTEXTLINK
  • That redundant links, such as those to precedent, be removed, per WP:OVERLINK
  • That links to a section heading from the top of those same sections be removed because they are purposeless
  • That the clause in the first sentence be separated by commas rather than parentheses because parentheses are both grammatically unnecessary and contrary to the typical article format

It strikes me as a bit much to need to list these points, however the reporting mechanism for edit warring indicates that such discussion be raised prior to reporting, as best I can tell. ENeville (talk) 04:18, 17 October 2012 (UTC)

I have a hearing in D.C. to prep for. Can't deal with this for several days. Boundlessly (talk) 09:43, 18 October 2012 (UTC)

I have implemented the edits pending conclusion otherwise. ENeville (talk) 16:33, 18 October 2012 (UTC)
I'm back from my hearing (it went well, by the way). I see you jumped the gun without waiting for -- consensus. Apparently Manual of Style rules of thumb that don't even apply in this context, and that carry a warning "these guidelines have exceptions and require judgment," are now black-and-white rules, and waiting for consensus or considered judgment is not. You also demonstrate great skill in picking-and-choosing among rules of thumb, applying one while ignoring another that is stated only a sentence or two away.
The edit history will show you that I've been keeping this page coherent for over five years. I got it up to a "B" level "good article." I explained to you that the internal links are there as part of the scaffolding that helps me maintain internal consistency. It's explained above in this Talk page. If you gave a moment's thought to five years' experience or this Talk page, it doesn't show. Somehow, to some, "be bold" means ignoring the Talk history and the contrary explanation I gave you, and promised to elaborate, without so much as a counterproposal or contrary showing.
Fine. We'll try it your way for a few months.
I see the entropy began within 48 hours of your "implementation."
Boundlessly (talk) 12:16, 23 October 2012 (UTC)
Please note Wikipedia:No personal attacks: characterizing another editor as "demonstrat[ing] great skill in picking-and-choosing among rules" or failing to give "a moment's thought" criticizes the editor rather than addressing the edits in question.
Please also note Wikipedia:Ownership of articles:

All Wikipedia content is edited collaboratively. No one, no matter how skilled, or of how high standing in the community, has the right to act as though he or she is the owner of a particular article.[emphasis original]

and please further note that this was previously pointed out on your Talk page.
As to "entropy", please note Wikipedia:Wikipedia is a work in progress, which I previously pointed out on your Talk page as well. I would also observe that the two edits to which you apparently refer as "entropy" appear to be constructive, so the basis for your criticism seems unfounded.
Re the cyclical section heading links, I scanned above per your direction but the closest material I found in relevance was Section numbering 1-4, which doesn't actually address the point. If you could be more specific it would be helpful. Perhaps the material you're thinking of is in one of the Talk archives? Please note that as of yet the only "explanation" that I've observed, here or in the edit comments, has been an assertion that the cyclical links "have utility" and are "scaffolding that helps me maintain internal consistency". The argument against them, as stated previously and in my initial comment above, is that they link back to the same spot and are thus a useless link. They appear to go somewhere but do not, and instead simply clutter the text.
Finally, please note that having other editors contribute is not "my way", but the foundation of Wikipedia. ENeville (talk) 17:06, 23 October 2012 (UTC)
Your warnings about personal attacks (as opposed to my statements that say nothing about you, only to ask you to draw inferences from your actions), applies to this edit of yours how? http://en.wikipedia.org/wiki/User_talk:Nabla#Common_law
Illegitimi non carborundum. ENeville (talk) 18:40, 14 October 2012 (UTC)
And your basis for jumping the gun when I'm tied up without waiting for me to get back is...? If you take the approach of "shoot first, ask questions later," you might not be able to get the answer later.
And your justification for elevating one isolated sentence about "overlinking" over all other contrary conditions and advice on WP:OVERLINK is -- what?
You want me to leave your edits alone. Well you've got it. Shall we take bets on how long it takes for things to fall apart without scaffolding?
Boundlessly (talk) 17:57, 23 October 2012 (UTC)
My use of illegitimi non carborundum was made in support of an editor who had referenced having withdrawn from greater WP involvement because of being "tired of the incredibly aggressive environment", amongst other reasons. The comment was made on their Talk page, in a thread that no one else had participated in, and included the generalized invocation of the adage, without specifying anyone, including yourself. My comment to you about editing here was about reversion and did not include any such adage, and I put it on your Talk page (and you deleted it).
My basis for implementing the edits, apparently referred to as "jumping the gun", was that:
1. The edits represented the input of two editors making logical and explained edits, including per WP:MOS, in contrast with an editor who had shown a proclivity for reversion, as well as a broader lack of respect for the contribution of other editors as evidenced by edit comments presumptuously referencing status as "older wiser previous editor" and by even the deletion of other editors' comments from article Talk pages. I thought it forbearing not to have implemented the edits at the time I commented on them.
2. I deemed it unwise to rely on the response, at an indefinite future time, of an editor who had shown that they could not be relied upon not just to respond to cited guidelines, but even to respect multiple pillars of WP, and who had apparently modified guidelines ex post facto in support of their actions. I would also point out that actual support for reversion of these edits has yet to be provided, beyond general references to such support existing somewhere.
Finally, if you find that the current (or any former) state of the article is superior to the dynamic state that is inherent in the nature of WP, perhaps you could mirror that state, in a manner similar to what others have done mirroring WP? ENeville (talk) 18:30, 24 October 2012 (UTC)

Over and out[edit]

I've been shepherding this page for about five years, and got it up to "Good article B" status. I am now bidding adieu.

As long as this was a collaborative project to collect people's best ideas in and to present them clearly to help non-lawyers understand what this is about, this was fun, and worth the time I put into it. Now that the big effort is to fight off a few Taliban (those who are committed to defacement for religious reasons), it's not fun any more. So I won't. When expertise is denigrated or becomes a liability, well, expertise is all I have to offer, so I have to get out of the game.

For issues that require some expertise, ding Coolcaesar (talk) and Famspear (talk), who understand the subject matter.

Boundlessly (talk) 21:08, 12 November 2012 (UTC)

Mistakes on map re: Sharia law[edit]

It looks to me like there's several mistakes on the map when it comes to which countries have Sharia law. Bangladesh does not, it's a common law system. Morocco has a dual legal system,
Agreed. Malaysia is another example that has a dual system of Common and Islamic Law. — Preceding unsigned comment added by 195.189.7.170 (talk) 09:34, 6 June 2014 (UTC)

Islamic/Sharia law is incorrect[edit]

Not all those countries labelled islam/sharia law is correct. Their laws might be influenced by Islamic law but they do not strictly follow Sharia. For example, in UAE alcohol is allowed which is a clear violation of islamic law. Should we make this point more clear?

OR and POV in section "The common law evolves to meet changing social needs and improved understanding"[edit]

The section states that "The common law is more malleable than statutory law" and illustrates this by a long example of how it changed. I think this is a clear case of original research. It then tells us how nice and flexible common law is without stating any opposite views. Most countries use a civil system and they might just have their reasons.

I think it would be better to only state that common law can change, and later add a section comparing common and civil law. A.donda (talk) 12:02, 2 October 2013 (UTC)

Don't mix up things that are distinct -- "statutory law" and "civil law" are two different things. In a common law system, the common law is more malleable that statute. The comparison simply makes no sense in a civil law context. 76.19.141.198 (talk) 22:44, 12 April 2014 (UTC)

Malaysia[edit]

Shouldn't Malaysia be considered a special case here? For as far as I know, they have a hybrid system of Common Law and Islamic Law. — Preceding unsigned comment added by 195.189.7.170 (talk) 09:30, 6 June 2014 (UTC)

My recent edits[edit]

I have created two new sections in the "Contrasts between common law and civil law systems" section: "General principles of law" and "Constant jurisprudence".

General principles of law gets some treatment in the "Decline of Latin maxims, and adding flexibility to stare decisis" section, but that section is mostly concerned with attacking connotation 1(a), that the common law interprets, and decides what the law is in the absence of, statutory and regulatory law, and attacking stare decisis, that once it is decided nothing changes until the statutes legislatively overrule the common law. It then jumps right into "Reliance on old maxims is now deprecated" but ignores the fact that "not-so-old maxims are still very much in use". These not-so-old maxims are, from what I can gather, called General principles of law, as in General principles of European Union law.

Jurisprudence constante just gets outright ignored, presumably because Precedent is another article. But the fact remains that this article covers connotation 2, common law as versus civil law, and the difference between Jurisprudence constante and stare decisis is essential to that understanding. But even the Precedent article does not discuss it (very clearly) from a separation of powers POV. I think the only way to rectify this would be to merge this section with the "Contrasting role of case law in common law, civil law, and mixed systems" section in the Precedent article into a independent article.

The literature goes out of its way to differentiate between General principles of law and customary law, but just how to describe customary law in terms of common law is not immediately clear to me at the moment. I think common law skips the mindgames that civil law scholars play. Civil law scholars say "its always been done this way" and the civil law judges say "" (they don't say a damn thing), whereas common law judges use the lords name in vain or otherwise give a scholarly account using legal maxims or general principles of law but never call it as such... Int21h (talk) 23:42, 20 June 2014 (UTC)

I should also note that I have explored these two topics in the Law of Mexico article, using sources, but while it is clear that these are attributes of the Mexican legal system because its a civil law jurisdiction, and I have seen them elsewhere for other jurisdictions, such as these slides from Germany, I don't have sources that are both reliable and that make the relationship explicit. Int21h (talk) 23:49, 20 June 2014 (UTC)

definition[edit]

I believe the current definition in the initial paragraph to be written by someone who wholly does not understand what Common Law is.

Common law is not "law developed by judges through decisions of courts and similar tribunals" - these courts and tribunals merely ARTICULATE the law as it stands, not enact it, per se. The Common Law is derived from time immemorial and which largely goes without saying. This principal underpins the law in two noticeable and inextricable ways; firstly, it creates procedure & doctrine, and secondly, it provides power of interpretation.

To understand and experience common law first hand, look for a criminal law that criminalizes certain conduct without providing a definition. Then ask why it is that the same law applied in two jurisdictions would produce different results. That answer is that the common law of those two jurisdictions is different. — Preceding unsigned comment added by 60.240.69.86 (talk) 03:34, 10 July 2014 (UTC)

Dear unsigned 60.240.69.86 -- The last sentence of your post explains the error in your first two sentences precisely. "the common law of those two jurisdictions is different." Exactly. As you note, often a point of law exists nowhere in statute. Most of the fine-line principles we take for granted today were first articulated by judges (well, to be entirely truthful, judges often obtain their ideas from parties' briefs. But the first statement of the law by any official with the authority to pronounce law was a court). If a point of law did not originate with a legislature or executive, the only possible alternative source is a court. A court acting through its decisions that set forth that law. Your statement, "The common law of those two jurisdictions is different" is true, precisely because two reasonable people can determine the law differently, and two judges did.
Another point of your statement is counterfactual. For anything but the most trivial of propositions, there is no consistent "time immemorial" on which any legal authority could rely, and thus (in common law systems), courts look to previous courts.
Nothing in the law "goes without saying," at least not in the United States. What would you want--every decision is made up on the fly with no reference to any consistent principle? Do you realize what the consequences of that would be?
Courts make law. That's just the way it works. (I clerked for a judge; I know from first hand experience how decisions are actually made.) Any other explanation of "common law" is simply a denial of reality. — Preceding unsigned comment added by 73.38.59.62 (talk) 19:21, 1 January 2015 (UTC)

Editor discrimination[edit]

I have removed the following violating and discriminatory admonishment from the top of the article:

The first three paragraphs of this article are correct. They have been heavily vetted over years by lawyers. Unless you are an American or UK lawyer that practices in court, please do not change this introduction section.

This admonishment is a violation of the Wikipedia policy against ownership of articles, oblivious to who writes Wikipedia and the fact that Wikipedia is a work in progress. Any version, extant or possible, can be supported by relevant argument, and if necessary citation. We do not need to rely on the secondary validity of attributed and unverifiable editor authority. If an editor wishes to set in stone or otherwise restrict editing of certain language, they might consider self publishing. ENeville (talk) 18:46, 21 November 2014 (UTC)

I agree, but if the three paragraphs represent a heated consensus, then they should still not be changed. Per the new "definition" section (which is, of course, wrong), we may still need to watch the article for common errors. — Arthur Rubin (talk) 01:29, 22 November 2014 (UTC)
ENeville, perhaps a closer read of the note resolves your concern. There is no sense in which it "sets in stone" or asserts "ownership." In fact, it invites further contributions from those that have subject matter expertise to contribute. It simply observes that the three paragraphs are the product of consensus among a number of people that have that expertise, and that editors without that expertise might well choose to exercise judgment before inadvertently adding either error or misuse of specialized jargon. As Arthur Rubin correctly notes, the immediately preceding "definitions" section in this talk page shows the bogosity that is out there trying to get in. Your own edit demonstrates that unfamiliarity with specialized jargon also leads to the introduction of error.

Definition can be improved wrt English usage (not wrt legal meaning)[edit]

At this writing, the definition is structured as follows:

Common law ... is law developed by ... courts ... that decide individual cases, as opposed to statutes [of a certain type] ... or regulations [of a certain type] ... .

This could be misread as meaning that courts variously decide INDIVIDUAL CASES <as opposed to> courts deciding STATUTES or REGULATIONS.

If we're trying to contrast COMMON LAW <as opposed to> OTHER TYPES OF LAW then we've got both a misplaced modifier and a non-parallel construction. The two things we're "opposing" are too far apart in the sentence, and they don't have parallel construction. We never use the phrases statutory law or regulatory law. Restructuring the sentence can increase clarity and reduce risk of confusion, while making no change at all to the definition.
I propose we restructure the words as something like this:

Common law ... is law developed by ... courts ... that decide individual cases. In comparison, statutory law is enacted by legislatures, and regulatory law is promulgated by executive branch agencies.

or, even more directly parallel and consistent:

Common law ... is law developed by ... courts ... that decide individual cases. In comparison, statutory law results from legislatures enacting statutes, and regulatory law is promulgated by executive branch agencies creating rules and regulations.

I think these changes would make the distinction much more accessible to laypeople and English-second-language folks, yet with no sacrifice to accuracy. What do you think? Petershank (talk) 17:49, 8 May 2015 (UTC)

Agree, that would be better. Qexigator (talk) 18:04, 8 May 2015 (UTC)

slander in 1999[edit]

Can I still sue for slander that happened back in 1999?.........it definitely was a slander case,just didn't know if I could sue or not back then. — Preceding unsigned comment added by 24.240.5.182 (talk) 11:30, 13 May 2015 (UTC)

The statute of limitations has undoubtedly tolled. But this is the Talk page for a WP article, not a legal advice forum. Please limit your comments and questions to the topic. American In Brazil (talk) 10:34, 19 January 2016 (UTC)

Criticism section[edit]

There should be a criticism section - I'm surprised there isn't one, since there are for the pages of most legal institutions. Common law is often described as "undemocratic" and it would be interesting to hear the argument on both sides. Some sources I've found related to this:

Fresheneesz (talk) 20:34, 1 June 2015 (UTC)

Template:Anchor[edit]

Heads need to be the best they can be for this article, not locked for the sake of other unknown articles. Each page is written based on the WP:CON at that page. Likewise, you cannot rely on this heading staying exactly as it is anyhow. This is why we have Template:Anchor. I have made use of it this time, but it would best if you learn how to use Template:Anchor for next time. Since the anchors are hiden to readers, it would also be better if you would rewrite those other pages so that the anchors can be shorter and more memorable. Most anchor links are just a word or two. tahc chat 17:06, 28 October 2015 (UTC)

See.. this links right to "One: Common law as opposed to statutory law and regulatory law". tahc chat 22:24, 30 October 2015 (UTC)

Seeking consensus on proposed addition to main section.[edit]

Proposed addition:
The common law itself is nothing else but reason. Reason is the life of the law.[reason 1] It is the perfection of reason, which commands what is useful and necessary and forbids the contrary.[reason 2] Layman, Esq. (talk) 04:20, 2 November 2015 (UTC)

No. If this were a direct quote it would need to be in quotations marks. Without quotation marks it would otherwise be plagiarism. If this is not a quote then it is personal opinion, and not saying anything very clearly.
Based on the different quotes in the citation it all seems to be just WP:OR based Layman's attempted synthesis of published material. If so, then it is a no either way. tahc chat 04:43, 2 November 2015 (UTC)
No. "Common law" is a term with a specialized and definite meaning, as definite as "cauliflower" or "Einstein's theory of general relativity." Adding ill-informed, admittedly-layman diversionary imprecision like this is misleading, and not helpful. As a layman (relative to physics), you may not have a clear idea of how general relativity and curved spaces work. That doesn't make it a good idea to add a wrong explanation, just because it's one you understand. Similarly, here, "common law" is a definite concept, quite well explained in the Introduction paragraphs. Just because you are a layman (relative to the law) and that explanation hasn't sunk in yet, it doesn't make sense to add a wrong, mis-simplified explanation here.
To take only one example of the error in your proposal, even if one takes the "Commentary on Littleton" at face value, it says nothing remotely like "The common law itself is nothing else but reason." mjfalkner/Layman is engaging in imprecise (and incorrect) paraphrase, and confusing necessary with sufficient conditions. The same mistakes are discussed heavily at Talk:Court_of_record#Please, no cranks, and mjfalkner/Layman may find it helpful to read that talk page to understand how to avoid being branded an unhelpful crank. 73.38.59.62 (talk) 16:13, 7 November 2015 (UTC)
Oppose. WP:OR. WP:SUMMARY. These statements essentially contradict the body of the article, and you're proposing to make it the summary the article? But thank you for asking first. Int21h (talk) 02:16, 8 November 2015 (UTC)
A BIG NO. WP is an encyclopedia, not a philosophical debate forum. Such comments add nothing to the reader's understanding of the topic. American In Brazil (talk) 11:14, 19 January 2016 (UTC)

Notes for the above discussion[edit]

  1. ^ https://archive.org/details/cu31924021661693 - The First Part of the Institutes of the Laws of England, or, A Commentary on Littleton (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832), Third Institute. Compare: "Let us consider the reason of the case. For nothing is law that is not reason", Sir John Powell, Coggs vs. Bernard, 2 Ld. Raym. Rep. p. 911.
  2. ^ http://legal-dictionary.thefreedictionary.com/Lex+est+ratio+summa - Lex est ratio summa. (n.d.) A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. (1856).

Create new sub-page[edit]

This article is getting very long. I suggest that the section "Common law legal systems in the present day" should be a new page, and its contents summarised as a very briefly annotated list on the current page. Arrivisto (talk) 17:44, 31 December 2015 (UTC)

I think this was a mistake, for several reasons.
1. Like any other common law subject, one can only understand the principle by seeing application to specific cases. This article has lost something without this material.
2. Conversely, without the surrounding context, the split-off "Common law legal systems in the present day" just feels like an incomplete rump treatment.
3. There are several internal links in this article to the removed material, which are now broken.
4. Let me peel back one question and probe two underlying assumptions -- what is wrong with "very long?" And is the article "very long?" The Encyclopedia Britannica article on common law is 100 pages of tiny tiny type.
5. Speaking as one reader, and strongly as one editor, I find it far easier to deal with subject matter when the entire relevant topic is collected in one place. As a reader, dealing with broken-apart bits, and then having to reassemble the thoughts for myself from disparate pages, is much harder. As an editor, I see it time and again--when there are multiple pages on basically the same topic, no one takes love of any of them, they all stay a mess, entropy creeps in, ideological cranks start to vandalize, the split-apart pages start to diverge from each other, and quality degrades.
I think this was a mistake. I propose to reintegrate this.
204.9.220.36 (talk) 19:47, 6 February 2016 (UTC)
Fair enough! Arrivisto (talk) 11:55, 24 February 2016 (UTC)

Lead[edit]

The lead says that 49 of the 50 United States use common law. This naturally raises the question in the reader's mind: "Which State doesn't?" I think we can answer that question simply and easily without going into detail by adding: "- Louisiana being the exception". Any objections, thoughts, brilliant comments? American In Brazil (talk) 11:26, 19 January 2016 (UTC)

The sentence seemed cumbersome to me, so I simplified it to read, "the United States (both the federal system and that of its states, except Louisiana)". grolltech(talk) 02:49, 26 January 2016 (UTC)

Brilliant solution. Why didn't I think of that? -American In Brazil (talk) 15:28, 29 January 2016 (UTC)

The problem with this "solution" is that it's too simple -- it's wrong. Louisiana law is in many respects common law--French/Spanish civil law only survives in a small compartment. Any accurate explanation is too complex a navel-gaze for the introduction to an article on world wide common law, and is quite out of place in this article. So I took the article back to where it was originally -- say enough to be truthful, enough to prompt the curious to ask the relevant question, and provide an easy link to the answer.
But then we run into the problem discussed in the previous section -- the "breakout" of "Common law systems in the present day" broke the integrated continuity. Which leads me to propose that that break-out was not a good move.
204.9.220.36 (talk) 20:05, 6 February 2016 (UTC)

Intro[edit]

The current intro is: Common law (also known as case law or precedent) is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases.[Feb2016 1][Feb2016 2] Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch.

The intro is preceded by (hidden) warnings to editors, beginning "1. The first three paragraphs of this article are correct, and the language is in proper idiom. They have been heavily vetted over years by lawyers, and now reflect a consensus. Until you have discussed your proposed changes on the talk page and there is consensus supporting your proposal, please do not change this introduction section."

How this insipid intro to a major topic can claim to be "correct" and "reflect a consensus" is beyond me; and I propose shortly to knock it into shape! Arrivisto (talk) 16:32, 25 February 2016 (UTC)

The edit history speaks for the "consensus" point. Please make a proposal here before you edit the text itself. I notice on your Talk page, Arrivisto, that your edits are, shall we say, not met with universal acclaim.98.229.147.75 (talk) 01:42, 29 February 2016 (UTC)
And that your "Create new sub-page" from two sections above had to be backed out. Please make a proposal here on the Talk page before you edit the text itself.98.229.147.75 (talk) 01:44, 29 February 2016 (UTC)

Remove, restore and copyedit[edit]

There is no RS for putting parenthetically after the opening words, which repeat the Title, "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[7] and Black's Law Dictionary - Common law (10th ed.). 2014, nor is that wording a summation of the article content as a whole. It reads as if from a novice student's attempt to make sense of what s/he mistakenly understood s/he had been taught. Editors here will know that it is the process by which the common law has historically evolved and continues to be developed that is commonly known, in brief, as combining "case law" with "precedent", as the article content explains (per the sources). As at the end of December 2013, the wording was " A common law legal system is a system of law characterized by case law which is law developed by judges through decisions of courts and similar tribunals. [1]" That is correct and consistent with the source and article. The incorrect wording stemmed from an IP revision in April 2014.[8] Qexigator (talk) 17:40, 30 May 2016 (UTC)

Qexigator, in what states or jurisdictions are you admitted to practice? Your edits and remarks here do not communicate familiarity with the jargon of the specific field.
The first words in the Duhaime definition are "Judge-declared law." What's your basis for moving off that? The Garner law dictionary reads common law A: “Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law…” What's your basis for moving to a definition that is less common?
You've reframed the article away from the precise and technical defintion used in the law to a layman's meaning that isn't very instructive -- your layman's definition is imprecise, and both over-inclusive and under-inclusive. I notice you added a large quote from the Oxford English Dictionary -- a non-specialist dictionary. Anyone with any experience in the law would never do that -- specialist dictionaries govern over general English dictionaries (which is only one of several things that leads me to question your familiarity with the topic). Before your edits, a long-standing consensus stated the very specific definition(s) used by those in the legal system. The layman's definition tends to mislead. Just to take one example among many, a lot of the anti-tax and anti-government crank groups rely on the layman's definition to create a lot of confusion and mischief, and I doubt that you want to be responsible for promoting that nonsense.
By the way, I'm hardly "a novice student's attempt to make sense of what s/he mistakenly understood s/he had been taught." I am asked to brief cases at the Supreme Court a couple times per year, argue cases in the Courts of Appeals (the second-tier courts), clerked for a federal judge, have argued cases before presidential appointees in the Executive Office of the President, and fairly regularly meet with House and Senate members. I have a pretty good handle on how this jargon is used. Expertise doesn't vacate the need for reliable sources -- but it does affect one's ability to choose more reliable over less reliable, to read those sources, and to consolidate those sources into an article accurately and precisely.
98.229.147.75 (talk) 18:20, 30 May 2016 (UTC)
Noted that the IP claims having a pretty good handle on how "this jargon" is used in the US Congress, Supreme Court etc. For the information of anyone interested in the editing of this article, suffice to say I am well acquainted with the topic, as my edits show,[9] and, for my part, any further improvements to the article would be welcome, whether in respect of informative content, presentation or format. Most editors (but not necessarily most readers) will be aware that the common law was brought to north America from England, and has continued to develop in the USA, in England and Wales, and in other countries, as outlined in the current version of the lead and the section headed "Description". Perhaps the version of the opening sentence as at the end of 2009[10] could be reconsidered: "Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action"? Qexigator (talk) 22:07, 30 May 2016 (UTC)
Sorry, Qexigator, it's your edits and non-idomatic use of basic terminology that betray your lack of familiarity, at least familiarity at a level of precision. As I'm going through your edits looking for helpful edits to retain, your lack of understanding of how the law works, and lack of knowledge of idiomatic usage, are really apparent. It doesn't make you a bad person (FuriouslySerence, on the other hand...), but it does counsel that perhaps you should exercise some judgment and deference to others that do know the area.
You do point out something valuable, that there is an everyday, layperson usage. I added a section to explain it, and to point out why that lay meaning is never used by lawyers.
You dropped your sentence on Pollock and Maitland in between sentences discussing Blackstone. The result was nonsensical. Please exercise more caution. At first, I kept your addition out of deference to you, even though Pollock simply isn't on the radar. It has nothing near the stature of Coke, Blackstone, or Holmes. Then I looked at it. It was published in 1898 describing practices from nearly 1000 years earlier. It was only a historian's description -- it was never intended to be relevant to actual practice of law or decision-making of judges. So after earlier keeping this addition, I have now removed it. That you added a discussion of Pollock and Matland in the text of the introduction is pretty convincing evidence that you don't know the subject -- you certainly have no experience to know what's important and what isn't.
Also, it's been pointed out that the internal links are there to disambiguate between the multiple meanings. Self-links for disambiguation are expressly permitted by the MOS. https://en.wikipedia.org/wiki/Wikipedia:Manual_of_Style/Self-references_to_avoid ("Other examples of permissible self-references of this sort include disambiguation links...")
98.229.147.75 (talk) 22:51, 30 May 2016 (UTC)
  1. ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. 
  2. ^ Black's Law Dictionary - Common law (10th ed.). 2014. The body of law derived from judicial decisions, rather than from statutes or constitutions 

Quexigator, you opened this dicussion as follows:

There is no RS for putting parenthetically after the opening words, which repeat the Title, "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[6] and Black's Law Dictionary - Common law (10th ed.). 2014

Hmm. Now after a trip to the library to look at "Black's Law Dictionary - Common law (10th ed.). 2014," the very source you cite, we see --

1. The body of law derived from judicial decisions... CASELAW

It's right there under your nose, in the very place you say it isn't. Please explain.

98.229.147.75 (talk) 09:57, 3 June 2016 (UTC)

Three connotations[edit]

Where does this "three connotations" concept coming from? It sounds like original research. Certainly it's not so widely accepted that it does not require a source or some attribution. The sources provided also don't discuss this "three connotations." I'm going to remove it until better sourcing can be provided. FuriouslySerene (talk) 20:16, 4 May 2016 (UTC)

I've done more digging to try to figure out where this phrasing came from. I see the original "three connotation" thing was added to the article way back in 2006 by an IP, where the editor called it three "important" connotations, which is at least somewhat more accurate according to legal dictionaries: [11]. Another editor Boundlessly (as he was then called; later Vanished user fweflklkaskwi4r592uofmoaihr) seems to have expanded its use throughout the article, although from what I can tell it's not based on any actual source. Boundlessly identified himself as a lawyer and seems to have changed it to "four connotations" at one point. The actual section has been rarely edited throughout the years. Seems like it just stuck around. Anyways, legal dictionaries and other sources do not use this phrasing. I still maintain it is original research, or at the very least, giving undue weight to a single source (which hasn't been identified properly). It is not commonly accepted that "common law" has only three connotations, from what I can tell. FuriouslySerene (talk) 17:21, 5 May 2016 (UTC)

The three connotations of the term common law are indeed widely used among legal scholars. The three different connotations are so familiar to lawyers (at least those trained in countries whose system originated in English common law) that we don't even really think about it that much. I'll see if I can come up with some examples of uses of the term in the three different ways, but I can't get to it right now. Famspear (talk) 18:15, 5 May 2016 (UTC)

I think you may have misunderstood my point. I am not arguing that these three specific definitions are inaccurate (although they may be). I am saying that the article presents the term common law as having three widely accepted "connotations" and then uses "connotation 1", "connotation 2" etc throughout the article. My review of legal dictionaries does not reflect this understanding. For example, Garner's Dictionary of Legal Usage describes "common law" in four types of usage, each of which it gives several different meanings. In the Oxford Dictionary of Law, there are 3 different meanings given, but those are not the same as the ones in here. In Webster's New World Law Dictionary, there are only two definitions given. My point is that the information is currently presented in an unsupported manner. There is no broad consensus in legal texts that there are "three connotations" to the term, and yet, it's presented as if this is a fact, without any attribution. Additionally, the internal linking in the article isn't appropriate under the MOS. FuriouslySerene (talk) 18:41, 5 May 2016 (UTC)
I think you may have misunderstood my point. My point is that the terms, the three connotations, are widely accepted, especially in the legal community, where it really counts. Indeed, the three uses of the term are so widely accepted that the person who inserted them in the article may have been a lawyer who simply did not consider the problem that in Wikipedia, we want things to be properly sourced. My point is pretty much the same as yours, otherwise: that we may need to find some actual sourcing. That's why I said I would see if I can come up with some examples of uses of the term in the three different ways; I was referring to looking for examples of reliable sources.
Another point: Sometimes, the most basic stuff about a particular subject is actually somewhat difficult to support with citations to sources. For example, if you were to go into a U.S. federal court and argue that under the U.S. Constitution, federal courts have no legal authority or power to have "court reporters" and "bailiffs" and "court clerks" because the U.S. Constitution doesn't actually mention any such legal authority or power, that would probably be considered a frivolous argument. A monetary penalty or fine could be imposed on you for trying to make such an argument in court. This would be so, even though you may well not find any mention of such a power, etc., in any previous court case interpreting the U.S. Constitution (I don't know, I made up this example, just now). Some concepts are just so basic that no one -- at least no psychologically normal person -- may think of trying to litigate them. That means that you may not be able to find much.
I am not saying that being concerned about finding sourcing for the three different meanings of the term common law is as silly as trying to argue that Federal courts have no constitutional power to have a court reporter. I'm saying that the various meanings of the term common law are pretty basic in the legal world. Again, let's look for some sources, but let's not strain too much -- and thereby make ourselves look silly -- here in Wikipedia. Famspear (talk) 20:36, 5 May 2016 (UTC)
I'm not too familiar with making arguments about US constitutional law in a US federal court but I do know (as I'm sure you do as well) that a core policy of Wikipedia is verifiability. I also am guessing you wouldn't go to court and argue your opponent's factum that cited to three cases is wrong by saying your position was widely accepted. Anyways, I look forward to seeing your sources, perhaps I am wrong - perhaps the term only has three very specific connotations and sources call them "connotation 1", "connotation 2" and "connotation 3". However, I've cited to three sources and none of them agree. Also note this is English Wikipedia, not American Wikipedia. If it's defined that way only by American lawyers it need to be properly contextualized, as the term is used around the world. FuriouslySerene (talk) 21:47, 5 May 2016 (UTC)
FuriouslySerene, do I understand your concern correctly -- you don't have any question that the term "common law" does in fact have several distinct connotations (at least three)? And that you agree (or at least do not contest) that the three set out here are at least correct, and each taken individually is supported by the sources that are respectively footnoted? Rather, is it fair to say that your question is verifiability for labeling, specifically for labeling them "connotation 1," "connotation 2," "connotation 3?"
To answer your "by the way" question, it is entirely permissible to argue to a court that certain points are commonly known, without sourcing them. It's called "judicial notice." Rule 1 of the Federal Rules of Civil Procedure requires parties and judges not to fall back on pedantic nonsense to impose pointless costs. If something just "is," we all accept it and move on.
A few examples. The sun comes up in the east. In 2016, temperature is measured in Celsius, Farenheit, and Kelvin, even though there have been lots of other temperature scales over the last several centuries, and it's entirely plausible to discuss those three and leave all the others undiscussed. And among lawyers and the legal academy, the term "common law" is commonly used in several ways, and among all the definitions in use, the dominant usages are the three set out here.
I agree with Famspear -- the three primary meanings of "common law" (with a nod to other historical or archaic or uncommon uses) is one of those observations of practical reality that every person with practical experience in the field "just knows."

204.9.220.36 (talk) 16:12, 16 May 2016 (UTC)

Yes, labeling them as "connotation 1" "connotation 2" etc. is original research. It does not exist in any reliable source. You continue to assert that it is "widely known" that there are three connotations, yet you have not introduced an iota of evidence in the week and a half since the discussion began, beyond your own repeated assertions. I do think it's rather ridiculous to claim the existence of "three connotations" is on par with the sun rising in the east. I would encourage you to read WP:Verifiability: "In Wikipedia, verifiability means that anyone using the encyclopedia can check that the information comes from a reliable source. Wikipedia does not publish original research. Its content is determined by previously published information rather than the beliefs or experiences of its editors. Even if you're sure something is true, it must be verifiable before you can add it." FuriouslySerene (talk) 22:04, 16 May 2016 (UTC)
FuriouslySerene –
I’m deeply puzzled by several aspects of your remarks.
First, the article says “The term common law has three main connotations and several historical meanings.” You write “you have not introduced an iota of evidence” that there are “three connotations.” But, as we’ll see below, the sources footnoted in the article all along support the three meanings directly. Further, all on your own, you concede that there are at least four. How is the article’s wording, “three main and several additional connotations” not supported by the footnoted sources and your own concession? For a moment, I was at a loss to see the basis for the complaint.
Then I saw your edit of 5 May 17:21, where you write “It is not commonly accepted that “common law" has only three connotations” Now I see the problem—you inserted the word “only” apparently out of thin air. Your misquotation changes the meaning entirely! That makes it very clear that wherever the problem lies, it is not the original article.
Second, in your edit history, you write “removing selflinking per WP:MOS” Again, I am puzzled. The WP:MOS article on “Self-references to avoid” quite carefully does not forbid all self-linking, but only self-linking of certain categories. The self-links in “common law” are not in these forbidden categories. In fact, WP:MOS says “Other examples of permissible self-references of this sort include disambiguation links.” Every self-reference in this article disambiguates among the various connotations. Again, the source of the problem is clearly not the article.
Third, and most striking, you write “yet you have not introduced an iota of evidence in the week and a half since the discussion began, beyond your own repeated assertions.” Let’s match up the “connotations” given in the article, with the definitions given in the footnoted sources, shall we?
Connotation 1: “One connotation distinguishes the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or "case law", i.e., decisions issued by courts”. (footnoted to Garner p 177 and Salmond p 32>
Salmond, definition 1, Common law and statute law. By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation.”
Garner, common law A: “Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law…”
Not only is the definition supported, even the numbering as “connotation 1” is directly supported by Salmond.
Connotation 2: Connotation 2 differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. (footnoted to Garner p 178).
Garner definition 3: in comparative law, a body of law based on the English legal system, as distinct from a civil law system
Connotation 3: Connotation 3 differentiates "common law" (or just "law") from "equity" (footnoted to Garner p 177, Salmond p 32)
Garner, common law A: Second, …. in this sense, common law is distinguished from equity.
So we see that each of the three connotations has direct support in the very sources that were footnoted all along, well more than an “iota.” I asked you to look at “the sources that are respectively footnoted,” and it is perfectly clear now that the problem we’re having here has no underlying cause in the article, its footnotes, or the commenters here that ask you to compare them. The problem lies elsewhere.
Fourth, you write, in the context of facts amenable to judicial notice, “I do think it's rather ridiculous to claim the existence of ‘three connotations’ is on par with the sun rising in the east.” In some cases, a court may take judicial notice of knowledge among experts in the relevant field. For example, the testimony of fingerprint experts is amenable to judicial notice. Likewise, a court may take judicial notice of definitions in dictionaries, such as those footnoted here. It is readily apparent that the problem underlying your comment on judicial notice is your lack of familiarity with basic terminology of the field or of relevant legal standards, and rather startling lack of careful reading. I see no problem with anything that Famspear or my earlier post offered here, and nothing that warrants your response. I am likewise puzzled that you stridently contest “the existence of ‘three connotations’” after you admit the existence of four (at a minimum), and the footnoted sources showed those three connotations in common use.
Fifth, you write “The actual section has been rarely edited throughout the years. Seems like it just stuck around.” Isn’t the most plausible explanation for why something just “stuck around” through over 1000 edits, is that it’s correct, and everyone else that had some question looked at the footnotes? Again, it appears that the source of the problem lies elsewhere, other than the article or its history.
Sixth, you quote the “verifiability” rule. In what respect are the pre-existing footnotes insufficient to establish “verifiability” of the three connotations (which, it seems, you have reverted to complaining about). It certainly appears that the problem lies in the eye of a beholder who failed to read the footnoted sources, not with the article.
Seventh, complaining that merely numbering things is “original research” strains the definition of “research” well past the breaking point. In what sense is this “research?” The Wikipedia “Contents” panel on every page assigns numbers to sections—does that make it “original research?” No, of course not—simply numbering things is not “research.” Likewise, your complaint bursts well past the bounds of practical writing. The body of the article has to have some kind of “handle” to disambiguate the various uses of the term—what more neutral reference basis is there for the three connotations than to simply number them?
To sum up all the above, FuriouslySerene, using Famspear’s terms, by complaining this vociferously about merely numbering variants of a thing, and so willfully refusing to consider the existing footnotes, aren’t you making yourself look silly? Or has it crossed the line over to trolling (in the sense of disagreeing for no purpose other than to disagree)?
204.9.220.36 (talk) 14:48, 18 May 2016 (UTC)
hearing no objection, I will back out a series of poorly-considered edits.
204.9.220.36 (talk) 21:04, 23 May 2016 (UTC)

Request for comment on "three connotations"[edit]

I am procedurally closing this RfC. Dionysodorus (talk · contribs) wrote at WP:ANRFC, "the participants made progress in their discussions as a result of it and have subsequently continued their discussion in another section of the talkpage".

This close is without prejudice against any editor undoing this close and relisting this RfC at WP:ANRFC.

Cunard (talk) 04:11, 9 July 2016 (UTC)

The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Should we keep or remove the use of the term "three connotations" and the various internal links throughout the article? FuriouslySerene (talk) 17:19, 27 May 2016 (UTC)

  • Remove as proposer. This discussion has been going on for over 3 weeks now and there has been no resolution. Hoping to get more comments on this. My point is this: there is no source at all for the use of "three connotations" or "connotation 1", "connotation 2" etc as used in this article. I believe it is WP:OR. The article presents the term common law as having three widely accepted "connotations" (or four connotations in some places) and then uses "connotation 1", "connotation 2" etc throughout the article. I've checked a number of legal dictionaries and none of them use this terminology. For example, Garner's Dictionary of Legal Usage describes "common law" in four types of usage, each of which it gives several different meanings. In the Oxford Dictionary of Law, there are 3 different meanings given, but those are not the same as the ones in here. In Webster's New World Law Dictionary, there are only two definitions given. There is no support in legal texts that there are "three connotations" to the term common law, and yet, it's presented as if this is a fact, without any attribution. Furthermore, I think the use of internal linking to these "three connotations" are contrary to the WP:MOS and are WP:OVERLINKING, all in support of this original research. To be clear, I am not saying these specific definitions are incorrect, just simply the way the information is presented is original research. FuriouslySerene (talk) 17:25, 27 May 2016 (UTC)
I added a few more footnotes, and a section Common law#Connotation 4. Informal uses among nonlawyer laypersons that explains the everyday usage, layperson's defintion of "common law" (and why that everyday defintion is wrong). I also changed the sentence that used to read "The term common law has three main connotations and several historical meanings worth mentioning" to "The term common law has three main connotations in actual usage among lawyers, an informal connotation used in everyday speech, and several historical meanings worth mentioning" I trust that that resolves your concern.98.229.147.75 (talk) 00:07, 31 May 2016 (UTC)
All of the concerns raised by FuriouslySerene are addressed in the immediately preceding discussion, including several that arise solely from careless reading by FuriouslySerene. Without some good faith attempt by FuriouslySerene to engage with the opposing view, I suggest that this RfC may be dismissed -- its sour grapes and no more. 204.9.220.36 (talk) 21:51, 27 May 2016 (UTC)
  • Remove(1): I broadly agree with FuriouslySerene's reasoning: some information citing RS such as those s/he mentions should be used, and the text should avoid using invented categories or labels such as "Connotation 1...2...3..." which are not used in RS. + see further below Remove (2). Qexigator (talk) 22:01, 27 May 2016 (UTC) + 17:35, 4 June 2016 (UTC)
Qexigator -- Please explain your concern for RS? The three definitions themselves, and the existence of three (and, as the article itself notes, more than three) are footnoted, and well-supported by those footnotes -- coincidentally, they're conveniently juxtaposed in the "Three connotations" discussion at point "Third" about 100 lines above. The "Three connotations" discussion immediately above suggests that one should tread lightly with FuriouslySerene's explication of the facts, and not take them unquestioningly at face value. If you investigate and agree with FuriouslySerene, that's one thing -- but it seems much of this is a tempest in a misquotation teapot. 98.229.147.75 (talk) 01:54, 29 May 2016 (UTC)
  • Comment: The three connotations of the word common law are essentially three different meanings of the term as used by lawyers and legal scholars in the countries whose systems are based on English common law. Whoever came up with the labels "connotation 1", etc., was (I assume) doing so for ease in explanation, and was not intending to imply that lawyers actually use those specific labels (we certainly don't). Maybe I need to go back and read the article more carefully, but I had not gotten the impression that the person who inserted the labels was claiming that those labels themselves carried any significance. Regarding "support in legal texts" that the three meanings are used by legal scholars: Yes, in real life, you will find the term "common law" used in the three ways described in the article. I simply do not have time to go find examples right now. In short, if we just want to avoid giving the incorrect impression that the phrases "connotation 1", "connotation 2", and "connotation 3" are actual labels used by legal scholars, then just remove the labels from the article, and describe the three different meanings of the term some other way. Famspear (talk) 01:53, 28 May 2016 (UTC)
Famspear--the issue with "removing the labels" is that throughout the article the term "common law" is used, sometimes in one sense, sometimes in another. Sometimes in multiple senses in a single sentence. Thus, when the difference matters, there's a disambiguation indicator (for example, "(connotation 1)". Perhaps the right solution is to coin a different set of disambiguation indicators. However, in my opinion, simply removing them wholesale is to elevate pendantry over clarity.98.229.147.75 (talk) 10:52, 29 May 2016 (UTC)
  • retain. For essentially the reasons stated by Famspear.
In addition, note that the three definitions track several dictionaries very closely -- in his RfC, FuruouslySerene neglects to mention or comment on the definitions in the Garner dictionary and Salmond dictionaries that are cited in footnotes 12, 13, and 14 of the article. These definitions are placed immediately nest to the relevant sections of the article in Section "Third" immediately above.
FuriouslySerence writes "There is no support in legal texts that there are "three connotations" to the term common law." The article does not say there are "three and only three," the article says "The term common law has three main connotations and several historical meanings worth mentioning." There appears to be no dispute that the article is correct and supported. FuriouslySerence takes no issue with the article as it actually reads; the concern appears to arise solely out of inaccurate paraphrase.
FuriouslySerence also neglects to mention the point made in comment "Second" above -- MOS expressly permits (even encourages) internal linking for disambiguation. That's exactly what we have here. There are several places within the article where the term "common law" is used twice in a single sentence -- but with two different meanings. Without the disambiguuation, that's pretty confusing!
I join 204.9.220.36 in the preceding "Three connotations" discussion -- the basis for FuriouslySerene's concern is, at best, deeply puzzling.
98.229.147.75 (talk) 19:27, 28 May 2016 (UTC)
  • Comment: this is a pretty simple matter. How is common law represented by academia? That's how it should be presented here. How do reliable law sources discuss this subject? Once that is determined, copy edit the article accordingly. As it stands, if the three connotations mentioned do not have a strong basis, i.e. are based on the article writer's interpretations, they should be removed immediately per WP:OR. If, said classification is manifested in appropriate books, journals, etc it should remain. Best, FoCuS contribs; talk to me! 12:47, 31 May 2016 (UTC)
I think that's a fair characterization -- and that's where it is (I have a couple of law professor friends, I know their thoughts on it, but I'll check with them for their feedback). I think that the existing footnotes do provide a "strong basis." However, to get well beyond any reasonable doubt, I will get the dictionaries noted above -- the online versions are abridged, so I will check a couple libraries for the paper dictionaries cited by FuriouslySerene. I will make sure that the (now four) connotations are over-footed even beyond where they are today. Give me about a week so I can get to a paper library. 98.229.147.75 (talk) 13:44, 31 May 2016 (UTC)
Agreed FoCuSandLeArN. I've checked a number of different legal dictionaries and none of them characterize it this way. I can't find any book or journal that does it this way. FuriouslySerene (talk) 15:27, 31 May 2016 (UTC)
FuriouslySerene, please specify exactly the issue that concerns you. In the https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations discussion immediately above, several times you raised an issue, someone responded to the specific issue you raised, and instead of acknowledging that your concern was not well founded, you shifted to something else. Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again. Please explain why the discussion at https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations point "Third" is insufficient to meet your concern. Please confirm that if one of the major law dictionaries give almost exactly the same set of definitions as set out here, though perhaps in somewhat different words, and perhaps slightly different order, that you will acknowledge that the article is OK.98.229.147.75 (talk) 22:30, 31 May 2016 (UTC)
Thank you both. I appreciate you willingness to investigate further. Regards, FoCuS contribs; talk to me! 17:10, 31 May 2016 (UTC)

Comment: Given that the article has a far wider context than the operations of persons participating in the legislative, judicial and executive institutions located in Washington, D.C., experienced editors will be aware that the article will be deficient if its content is not compatible with an authoritative descriptive dictionary of the English language, such as the OED, and that if some other source is cited any significant difference should be properly explained, for specialist and other readers. The IP edit[12] removed <+>the Section title "Description</+> from a recent version, <+>and relegated down from there</+> the following: In Oxford English Dictionary (1st edition 1933) "common law" is 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 ecclesiasical 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". The current OED online[13] presents: common law: 1The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1The body of English law as adopted and adapted by the different States of the US. Compare with civil law. Qexigator (talk) 18:02, 1 June 2016 (UTC) + 05:45, 2 June 2016 (UTC)

Look more closely. I didn't remove the reference to OED, I moved to a new section that "explains [the difference] for specialist and other readers", "Connotation 4. Informal uses among nonlawyer laypersons" 98.229.147.75 (talk) 02:04, 2 June 2016 (UTC)
ok, IP, fair point. There remain questions about balance, presentation, structure, and pov-ish suppositions about lawyers and "nonlawyer laypersons": in the lead, and the use of "connotation". For example, citation of any leading case using words about a threefold/fourfold connotation is conspicuously absent. Qexigator (talk) 05:45, 2 June 2016 (UTC)
Sorry Qexigator, your edits PROVE the point beyond any possible doubt -- you have no idea what you're talking about.
1. We rely on common law for "small" points of law 100 times as often as we do "leading" or "landmark" cases. Every written decision of every court is "common law"--hundreds every day in the federal courts, tens of thousands a day in the state courts. Various decisions have different weight or jurisdictional scope, but it's all "common law."
2. Not only that, your edit to the first paragraph relates to the subject matter of the second, and your edit to the second paragraph relates to the subject matter of the first. You don't even recognize that there are two broad classes of subject matter in play here, let alone that they are distinct or what they are!
Your edits demonstrate complete unfamiliarity with the subject matter. I asked you before whet jurisdiction you're admitted to practice, and you haven't answered that -- it's time to concede that you're way out of your depth. You're not moving the ball. At least not forward. Very nearly every one of your recent edits introduced error or nonidiomatic language -- I carefully went through your enitre recent edit history and reintegrated the ones that were at least neutral, not outright wrong.
You made an important contribution, "Connotation 4. Informal uses among nonlawyer laypersons". Give yourself a pat on the back for that, and then leave the rest of the article, which discusses things with a lawyer's precision, alone.
I notice that you cited no source whatsoever for your additions relating to “leading” or “landmark” cases. Thank you for demonstrating the standard you expect for “reliable sources.” I trust that you will apply that same standard to the rest of the article. After all, application of a double standard would mark someone as a disingenuous troll. I am perfectly comfortable attributing your erroneous edits thus far to good faith, arising because you’re a nonspecialist layperson. But application of a double standard would demonstrate bad faith. Let’s not go there, OK?
I'm not going to tell you to butt out totally, but I do urge that you propose any changes here on the talk page first. Sometimes the most important contribution one can give a project is to recognize one's own weaknesses.
98.229.147.75 (talk) 11:54, 2 June 2016 (UTC)
  • Request. I can answer Qexigator's query for "Citation of any leading case using words about a threefold/fourfold connotation" as soon as I get from FuriouslySerene (and from Qexigator if he wishes) answers to the following questions -- I can't keep spending time chasing shape-changing --
    • Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again.
    • Please confirm that the sentence we're talking about is "The term common law has three main connotations in actual usage among lawyers, an informal connotation used in everyday speech, and several historical meanings worth mentioning" and that this sentence does not say "There are three and only three connotations" or anything like that.
    • Please confirm that you will not complain about your own misquotation of the article. As one example, please confirm that you recognize that the article uses the word "connotation," shades of meaning for a single concept, in this case, depending on what's being contrasted. Please confirm that you will be scrupulous and precise about the issues you raise.
    • Please explain why the discussion at https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations point "Third" is insufficient to meet your concern.
    • Please confirm that if one of the major law dictionaries give almost exactly the same set of definitions as set out in the article, though perhaps in slightly different words, and perhaps slightly different order (for example, if items 1 and 2 are the same, and the differences in order are lower down), that you will acknowledge that the article is OK, and we can put this to bed.
    • Acknowledge that it needn't be a "case" that shows the connotations; rather, any "reliable source" or combination of "reliable soruces>"
    • (I point out, again, that it certainly appears that all the issues raised by the two questioners in this RfC seem to arise from careless misquotation, careless reading, or simple lack of familiarity with the subject matter. Qexigator's call for a "leading case" as the only "reliable source" is pretty brazen -- after that, all further readers of this RfC discussion should take Qexigator with a large grain of salt.)
98.229.147.75 (talk) 12:12, 2 June 2016 (UTC)

For the information of anyone who is inclined to give credence to the IP's remarks: I am fully conversant with the nature, history and practice of the common law, and can readily see through the IP's attempts to hector and traduce those who are disinclined to regard the IP's pov (expressed in comments on this page) as a satisfactory basis for editing the article. The IP can be seen to be prone to misrepresent, whether intentionally or not, as if indulging in questionable advocacy, possibly because the IP is well out of his depth (it certainly looks like it), and would do well to pay heed to the counsel Sometimes the most important contribution one can give a project is to recognize one's own weaknesses. It is practically impossible to see how, AGF, the above comment, "citation of any leading case using words about a threefold/fourfold connotation is conspicuously absent", could be read as Qexigator's call for a "leading case" as the only "reliable source". Qexigator (talk) 14:48, 2 June 2016 (UTC)

  • Answer. Black's Law Dictionary (10th ed.) gives four definitions. (Black's is head-and-shoulders the dominant legal dictionary in use by legal professionals. I have 7th ed on my desk, I wanted to get to a library to confirm with most-recent, 10th ed.) Guess what. The four definitions in Black's track the four connotations in the article. One-for-one, and very nearly word-for-word. I've added the four definitions from Black's as footnotes.
Notably, Black's does not include a definition corresponding to the imprecise, layman's definition raised by Qexigator. So I think it's important to include a discussion of the layman's definition, but to explain that it is only a layman's definition, and not helpful in understanding the term with any precision or accuracy.
I trust that puts the issue to bed.
98.229.147.75 (talk) 09:37, 3 June 2016 (UTC)

Does anyone understand what this IP is going on about by writing "a definition corresponding to the imprecise, layman's definition raised by Qexigator"? or the curious concern with "layman" as if an inferior species as a member of this article's readership? Qexigator (talk) 19:15, 3 June 2016 (UTC)

The answer to your question is simple -- because two days ago you asked. In this very section of this very Talk page. "the article will be deficient if its content is not compatible with an authoritative descriptive dictionary of the English language, such as the OED, and that if some other source is cited any significant difference should be properly explained, for specialist and other readers." You proposed adding the OED defintion and edited it in--all I did was agree with you that it's important to include, and that it has to be explained "properly."
I just double checked; I have never said anything about "laymen" as people, let alone members of the audience. My comments have been scrupulously confined to a "layman's definition."
The reason it matters is because every once in a while I have a case where one of the other parties is pro se (a non-lawyer representing him/herself). These are almost always really painful affairs -- when one party doesn't know the rules, everything screws up. If you've ever been square dancing when one member of the square doesn't know the calls -- same kind of constant snafu.
One of the recurring and common mistakes that pro se's make is to rely on the layman's definition of "common law." These poor folks get sanctioned, or lose winnable cases, through simple ignorance.
My goal is to see that this article is correct and educational. If it can steer a couple of pro se's away from relying on bogosity, then it's worth the time I've put into keeping the article strictly accurate. Your comments made it clear that it's not only important to be correct internally, but also to clearly warn against bogosity that's out there in the world so that people don't step in it. It matters to me because I hate seeing people hurt by trying to rely on the layman's definition in contexts where accuracy matters.
98.229.147.75 (talk) 19:57, 3 June 2016 (UTC)
Noted.[14] Qexigator (talk) 06:31, 5 June 2016 (UTC)
  • Further comment: While some recent IP edits may be seen by others as at least out of place or inept[15] they have drawn attention to a long-standing weakness in the article: the way "connotation" was being used to arrange the article content, well before IP's well-meant intervention. An early version of the wording appeared as long ago as January 2006:[16] "There are three important connotations to the term", and "connotation" has survived the multitude of later revisions the article has attracted. The enumeration began in October 2006.[17]. While it was always questionable, and was touched on in some of the earlier discussions on this page (long before the IP edits which are under discussion in this RfC), it was tolerably acceptable as an editorial device ("scaffolding"), to let the article on this complex topic be constructed, and, as such, was retained in recent revisions (2 June) at[18] But it was always open to objections such as have now been raised, and have become more acute as a result of the recent interventions of the IP. I have formulated a proposal, set out for discussion below. Qexigator (talk) 11:37, 4 June 2016 (UTC)
  • Remove (2): If the first of Black's descriptions (quoted below) is adopted as the primary connotation, it can be restated as
"the body of law and juristic theory which was originated, developed, and formulated and is administered in England, as distinct from law created by the enactment of legislatures, equity law, and ecclesiastical law. In the United States, "common law" refers to 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 forms part of the law of most of the states of the Union, while federal common law is a body of decisional law developed by the US federal courts untrammeled by state court decisions.";
and, if the article is looked at afresh, it can be seen that with tweaks to the text here and there (and removing verbiage) the intrusive labels Connotation 1-5 (in the current version) are better left out.
+ Or perhaps more simply use the current OED online wording:[19] common law: 1 The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1 The body of English law as adopted and adapted by the different States of the US. Compare with civil law.

Qexigator (talk) 17:11, 4 June 2016 (UTC) + 17:20, 4 June 2016 (UTC)

Remove scaffolding[edit]

The Rfc opened at 17:19, 27 May 2016 (UTC), about use of the term "three connotations" and the various internal links throughout the article. To see how the article might look if some of this was edited out see "Connotation" section at 17:24, 30 May 2016 [20].(Other parts of the article have changed since then to make up the current version). What would the section look like if we could do without "Connotation" headings altogether? In view of the comments here, let us consider going further and looking at the section in that version (of 10:47, 30 May), and reproducing it without the recurrent Connotation headings:

Connotation

The connotation of the term common law varies according to context.

In some contexts "common law" is used to distinguish the authority that promulgated a law. For example, much of the law in most Anglo-American jurisdictions is "statutory law" enacted by a legislature, "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 (or quasi-judicial tribunals within agencies).[2][3] 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.[4]

In other contexts, "common law" is used to diffentiate a jurisdiction or legal system from "civil law" or "code" jurisdictions.[4] 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.[5]

As a rule of thumb, common law systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. The contrast between common law and civil law systems is elaborated below.

In some contexts "common law" (or "law") is differentiated from "equity".[2][3] 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.[6][7] 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)[8] 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.

drafting note: what follows may be better merged with History section
see[21]Qexigator (talk) 16:58, 7 June 2016 (UTC)


In one 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.[9][10] This definition is found or alluded to in some internet dictionaries.[11]

Today's use of "common law" as opposed to statutory law and regulatory 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.[12]

The English Court of Common Pleas dealt with lawsuits in which the Monarch had no interest, i.e., between commoners. Additionally, 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.

END of proposed version

Perhaps the end paragraphs would be better merged with the History section.

Qexigator (talk) 18:31, 6 June 2016 (UTC)

I've been away for a week. I am utterly flabbergasted at what's happened.
Qexigaotr's removal of the cites to Black's Tenth that were recently added -- that's outright vandalism.
204.9.220.36 (talk) 23:14, 6 June 2016 (UTC)


Oppose. These are my three questions.
Those with any experience in such matters know that it's simply pointless to base an argument on an everyday dictionary for the meaning of a specialized term. In any legal proceeding, everyday dictionaries are not considered "reliable sources" when they conflict with specialized dictionaries from the specialized field. Do you have any basis to believe that that rule should not control here?
Likewise, in the law, when a source publishes a later version of a document that replaces an earlier version, the later version controls, and the earlier version is no longer a reliable source (except as a historical record). Do you have any basis to believe that that rule should not control here?
Why remove the cites to Black's mosst current edition, other than that you disagree?
98.229.147.75 (talk) 02:21, 7 June 2016 (UTC)

This IP's untruth noted: see reflist no. 4. Qexigator (talk) 17:17, 7 June 2016 (UTC)

Black's Law Dictionary, 10th Ed.

common law, n. [fr. Law French commen.ley "common law"] (14c)

1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law;>. Cf. STATUTORY LAW.

federal common law. (1855) The bod}"of decisional law derived from federa1 courts when adjudicating· federal questions and othet matters of federal concern, such as disputes between the states and foreign relations, but excluding all cases governed by state law. An example is the nonstatutory law applying to interstate streams of commerce.

2. The body of law based on the English legal system, as distinct from a Civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies <all states except Louisiana have the common law as their legal system>. Cf. CIVIL LAW(1).

3. General law common to a country as a whole, as opposed to special law that has only local application <the issue is whether the common law trumps our jurisdiction's local rules>. Also termed jus commune.

4. The body of law deriving from law courts as opposed to those sitting in equity <a mortgage founded in common law>. The common law of England was one of the three main historical sources of.English law. The other two were legislation and equity. The common law evolved from custom and was the body of law created by and administered by the king's courts. Equity developed to overcome the occasional rigidity and unfairness of the c6tnmon law. Originally the king himself granted or denied petitions in equity; later the task fell to the chancellor, and later still, to the Court of Chancery.

Interesting. All four definitions in Black's are "the body of law ..." A "system" does not even appear as a primary definition.

The article has been redirected from points of primary importance to secondary.

98.229.147.75 (talk) 22:27, 30 June 2016 (UTC)


The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Improving opening sentences[edit]

It is proposed that version P below would be better suited to the lead's opening sentences than is the existing version E[22] retained by an IP edit, partly by removing verbiage for crisper prose, and partly to ensure accuracy of wording in relation to sources currently cited.

  • P (proposed) A common law legal system is characterized by case law developed by decisions of judges, courts, and similar tribunals, stated mainly in "leading cases" or "landmark decisions" which have precedential effect on future cases.[13][14][15] Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of existing common law binds judges in current cases to ensure consistent treatment.
  • E (existing version) Common law (also known as case law or precedent) is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases.[13][16][15] Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of past common law binds judges that make future decisions, just as any other law does, to ensure consistent treatment.

The proposed change:

Common law (also known as case law or precedent) is law A common law legal system is characterized by case law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases. mainly in "leading cases" or "landmark decisions" which have precedential effect on future cases.[13][17][15] Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of past existing common law binds judges that make future decisions, in current cases just as any other law does, to ensure consistent treatment. Qexigator (talk) 14:48, 2 June 2016 (UTC)

  1. ^ Duhaime's Law Dictionary, "Definition of Common Law"
  2. ^ a b Garner 2001, p. 177
  3. ^ a b Salmond 1907, p. 32
  4. ^ a b Garner 2001, p. 178
  5. ^ "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
  6. ^ Federal Rule of Civil Procedure, Rule 2 ("There is one form of action—the civil action.") (1938)
  7. ^ Friedman 2005, p. xix
  8. ^ "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."
  9. ^ 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. 
  10. ^ 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. 
  11. ^ E.g., Lectric Law Dictionary : That which derives its force and authority from the universal consent and immemorial practice of the people. It is at best obsolete. It is both underinclusive and overinclusive. Lawyers never rely on this definition.
  12. ^ David John Ibbetson, Common Law and Ius Commune p.20 (2001) ISBN 978-0-85423-165-2
  13. ^ a b c Garner 2001, p. 177-78
  14. ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. 
  15. ^ a b c Black's Law Dictionary - Common law (10th ed.). 2014. The body of law derived from judicial decisions, rather than from statutes or constitutions 
  16. ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. 
  17. ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. 


This proposal has many problems, almost all of which are either evident in the contrast between the proposed text and the footnotes, or discussed earlier on this Talk page.

To set some context, note the structure of the first two paragraphs of the article:

  • the first paragraph of the article is about “common law” as a source of law, in distinction to statutory and regulatory law
  • the second paragraph is about “common law” as a system, the system descended from England, in distinction to “civil law”

The first problem is that your proposal violates the very sources you footnote. The proposal makes the first paragraph be about the “system” sense of the term. But the footnotes point to the “source of law” sense of the term:

  • Your first footnote is to Garner. He writes “perhaps most commonly within Anglo-American jurisdictions, ‘common law’ is contrasted with statutory law.” It’s more than passing odd that you would propose to not only displace the “most common” usage from primacy of place, but to obliterate this sense from the introduction entirely.
  • Your second footnote is to Duhaime. Duhaime’s very first words, the first definition, is “Judge-declared law,” that is, the “source of law” sense of the term. Of the definitions in Duhaime, none correspond to the “system” connotation. Your proposal to make the article disagree with your sources is rather surprising. Similarly, your proposal to eliminate Duhaime’s first definition from the introduction is at best counterintuitive.
  • Your third footnote is to Black’s 10th Ed. Black’s first definition—quoted under your nose right here in the very footnote you see in this Talk discussion—is the “source of law” connotation, “The body of law derived from judicial decisions, rather than from statutes or constitutions” not the “system” connotation.

You’re starting with a paragraph that introduces the “most common” sense, that has perfectly good citations to reliable sources. You propose to retarget the paragraph to a secondary definition, and propose to remove the sense that—according to all three of the sources you cite—is either the “most common” sense of the term or stated as the first definition. The rationale for your proposal escapes me. Could you elaborate?

The second problem is redundancy. The “system” connotation for “common law” is in the second paragraph of the article. Why do you propose to make the first paragraph redundant with the second?

The third problem is a lack of reliable sources, and consequent substantive error. You propose “stated mainly in ‘leading cases’ or ‘landmark decisions’ which have precedential effect on future cases.” (a) You give no citation to any reliable source. (a) There’s a simple reason for no reliable sources: your statement is simply wrong. Any brief or court decision cites many dozens of times as many “small” or “fine” points as “leading or landmark” cases—“landmark” cases are a true rarity, which is why we call them “landmark.” Common law is in no way “mainly” “leading or landmark” decisions. Common law is “mainly” routine stuff, and the small glosses at the boundaries.

The footnotes are right there, yet from all appearances you didn’t read them. All the issues in this posting were brought to your attention earlier on this Talk page. Before we go any further, can you please offer an innocent explanation for

  • your failure to cite reliable sources after your attention was specifically drawn to the problem
  • your edits that are in direct conflict with the very sources you cite
  • your failure to observe the relationship between the two paragraphs after it was brought to your attention,
  • the rationale for your proposal to remove the “most common” sense of the term from the introduction,
  • your failure to engage with any of the discussion in previous sections of this Talk page—we can’t make any progress if you don’t read what’s already here, and
  • your imprecise and non-idiomatic use of specialist language, even though your own footnoted sources would have led you to something more mainstream?

Other than your own say-so that “I am fully conversant with the nature, history and practice of the common law” what evidence do we have to deduce that? Don’t tell me, show me. Your work product communicates louder than your statements.

98.229.147.75 (talk) 01:51, 3 June 2016 (UTC)

By the way, adding "open justice" to the "Stages of a common law trial" is not an edit that reassures us of your "fully conversant" familiarity with the jargon of the art. "Open justice" is a fine thing, but it's not a "stage" like the other items in this list.98.229.147.75 (talk) 02:24, 3 June 2016 (UTC)

IP's comments noted, pending "about a week [from 31 May] so [IP] can get to a paper library" (responding to Rfc on "three connotations"). Meantime, further constructive comment from others will also be welcome. Qexigator (talk) 05:47, 3 June 2016 (UTC)
You're the proponent of the change. Among those who are "fully conversant" with legal principles, we all know that the burden to explain is on the person who seeks a change in the status quo. Especially here, where it's a long-standing consensus discussed at length by lawyers who work with the subject matter every day.
This is the second time you raised essentially the same issue, see https://en.wikipedia.org/wiki/Talk:Common_law#Remove,%20restore%20and%20copyedit above. You began that discussion as follows:
There is no RS for putting parenthetically after the opening words ... "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, ... Black's Law Dictionary - Common law (10th ed.). 2014
"Black's Law Dictionary - Common law (10th ed.). 2014," the very source you cite, reads as follows --
1. The body of law derived from judicial decisions... CASELAW
Qexigator says the words "case law" are not in Black's, Black's puts it in all caps.
Just so everyone knows how much credibility your explanation would warrant, should it appear.
98.229.147.75 (talk) 10:18, 3 June 2016 (UTC)
Noted.[23] Qexigator (talk) 06:39, 5 June 2016 (UTC)

Interestingly, the IP's gleeful comment has, probably unwittingly, made my point for version P. But, for the information of anyone interested in the editing of this article, here is another clear instance of the IP misrepresenting others: Qexigator says the words "case law" are not in Black's. My comment above, at the top of section "Remove, restore and copyedit" was quite otherwise: "The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[6] and Black's Law Dictionary - Common law (10th ed.). 2014, nor is that wording a summation of the article content as a whole". Duhaime's Law Dictionary[24] reads (I will bolden "case law", but leave typos as found): "Common Law Definition: Judge-declared law. Law which exists and applies to a group on the basis of customs and legal precedents developed over hundreds of years in Britain. A body of English law of law which originated with an oral tradition of tribal justice in Britain thousands of years ago and which developed into a unique, cohesive national body of law (the realm) developed and set to writing by English judges over time, and which was eventually imported as the law of British colonies throughout the world such as the United States of America (except Louisiana), Canada (except Quebec) and India. "The common law is judicially created law that is developed on a case by case basis," wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State. In R v Rusby, Justice Kenyon wrote: "The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilized society itself, and was formed from time to time by the wisdom of man." Two other sources have contributed to the common law although often described as exceptions thereto: equity and laws imposed by parliament (statutes), both of which have been stated to have, where they differ with the common law, precedence over it. William Blackstone wrote in his Commentaries on the Laws of England (1756), that common law was: "... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treastises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law." Because it is not written by elected politicians but, rather, by judges, it is also referred to as unwritten law or lex non scripta. Judges sought those principles out when trying a case and applied the precedents to the facts to come up with a judgment. Baker wrote: "There was probably never a time when the common law was not in some sense case law.... "(T)the student cites the Roman maxim that one should follow reasons rather than precedents but the master qualifies this by saying that where the reasons for things are obscure, it is enough to follow precedent. "By the time of Bracton, the influence of judicial practice is clear on the face of the text. The author of the preface stated that he had written the book in order to prevent the newer generation of judges from unwittingly leaving the right course settled by their wise predecessors."Civil law pundits have had their fun with this; the French, for example, chiding the English with having a case law obsession (la superstitition du cas). Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the: "... common sense of the community, crystallized and formulated by our ancestors". The roots of common law can be found in customs for resolving disputes which had evolved in England since the Roman occupation of the Island some 2,000 years ago. But the Germanic invaders of Britain, as the Romans left, tore up most of the roots Roman law had planted. Gibbon wrote: "The ferocious Saxons trampled on the laws of Rome...." (etc.) Qexigator (talk) 14:01, 3 June 2016 (UTC)

If this discussion has shown anything, it's that it's pointless to engage with the IP, who is borderline disruptive and seems to struggle with basic reading comprehension. The incessant personal attacks on anyone who doesn't agree with him are really unhelpful. Hopefully the RfC attracts more attention. I think your proposed edit is an improvement on what's currently there. However, common law has different meanings: it refers to both a system of law and the actual laws that are derived from legal decisions. I think mention of that needs to incorporated in the introduction. Also, personally I don't think Duhaime isn't the most reliable source. FuriouslySerene (talk) 17:15, 3 June 2016 (UTC)
Thanks. I agree with you wholeheartedly that "common law" has multiple meanings (that's why they're laid out as the separate "connotations" -- your previous concern is now more puzzling than ever), and two of the most important are "actual laws" and "a system of law." Note that that's exactly how the Introduction is organized -- two paragraphs, one for each of these two. I take your comment as confirmation that the Introduction is organized correctly, not that anything more needs to be done to "incorporate" the two meanings, right? By the way, did you read any of the previous discussion in this very section? 98.229.147.75 (talk) 19:10, 3 June 2016 (UTC)
Perhaps, FuriouslySerene, you and other commenters here are familiar with the online edition of Black.[25] It is more likely to be accessible to the putative layman, or anyone else viewing the article with an intelligent interest in its content, than the current edition. The online entry for "COMMON LAW" is on page 345/6. This begins by stating that as distinguished from Roman law, modern civil law and other systems of law, it is "that 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. Lux v. Haggins, 69 Cal. 255, 10 P.674." It continues, with citations from leading cases in USA law reports, with a series of paragraphs beginning "As distinguished from-- ..."law created by the enactment of legislatures..."; "equity law..."; "ecclesiastical law..." Then a paragraph beginning "As concerns its force and authority in the U.S., the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. Industrial Acceptance Corporation v. Webb, Mo.App., 287 S.W. 657, 660......Trust & Savings Bank, 182 Cal. 177, 187 P. 425, 427. The common law of England, adopted by Pol. Code Cal. § 4468, does not refer solely to the lex non scripta, the common law unmodified by statute, but contemplates the whole body of jurisprudence as it stood, influenced by statute at the time when the Code section was adopted, and also embraces equity. Martin v. Superior Court of California in and for Alameda County, 176 Cal. 289, 168 P. 135, 136, L.R.A.1918B, 313." It ends For "Federal Common Law," see that title., and that simply describes FCL as "a a body of decisional law developed by the federal courts untrammeled by state court decisions." I see nothing there to support the opening words of E above (the present version of the article). Qexigator (talk) 20:49, 3 June 2016 (UTC)
Did you look at it carefully? Fourth Edition, 1968. We are now at 10th Edition, 2013. 98.229.147.75 (talk) 21:09, 3 June 2016 (UTC)
Yes, IP, as you can see above, that is the point. So....? Qexigator (talk) 21:17, 3 June 2016 (UTC)
In the law, if you cite an old source, a source that has been superseded and replaced with something else that goes against you, you not only lose that issue, you get sanctioned. The sanction can be a fine, or a loss of that specific issue (so you might have evidence excluded, a witness is not allowed to testify, you lose the right to argue something, a deadline is moved to penalize you, or some such thing). In extreme cases, such as where you couldn't not know that your source was superseded, or the obsolescence is expressly brought to your attention in time for you to self-correct, a court may order that the case is over and you lose, or report you to your state bar registrar, who starts disciplinary proceedings, up to and including disbarment.
At the very least, if you cite an obsolete or superseded source, you have to tattle on yourself, and explain why you're doing it. Almost always, the explanation makes the original statement look simply silly. Thus most lawyers go through their whole careers without (knowingly) citing an obsolete source.
Lawyers may not be the profession most esteemed for personal integrity. But there are standards of truthfulness below which we will not go. It's interesting to me that you are proposing to go below that standard. You haven't acted yet, but even to propose is something you'd never see from anyone in the profession.
So I am just struck by your willingness to rely on an obsolete source, when you know that it's been superseded by a later edition that cuts squarely against you, and your brazen statement that to do so "is the point." It's interesting to observe your judgement about legal topics, your standard for truthfulness, to see an approach that's so far out of the mainstream, and your persistence in an area where you are so obviously uninformed.
I trust that this is sufficient to end this discussion at the proposal stage, and that you will take no further action.
98.229.147.75 (talk) 11:26, 4 June 2016 (UTC)
FuriouslySerene: Is this[26] coming off the rails? Qexigator (talk) 21:38, 3 June 2016 (UTC)
I've been away for about a week. 98.229.147.75 understands the topic and how to write about it. Qexigator does not.
Of all the discussion above, the one that should begin and end the discussion is the current edition of Blacks's, which gives as first definition "1. The body of law derived from judicial decisions... CASELAW" The system takes its name from the case law sense of the term, not the other way 'round. Qexigator's proposal removes the FIRST defintion from the lead entirely -- that's nonsense.
As a practicing lawyer, I state my unequivocal view that Qexigator's proposal is a big step backwards. Not quite vandalism, but close.
Before this goes any further, could Qexigator, FuriouslySerene, and Permstrump identify any jurisdiction in which they're licensed to practice, or identify any other basis of expertise? I'm admitted in New York, Massachusetts, the U.S. Supreme Court, two of the federal Courts of Appeals, and one federal agency. It doesn't make me necessarily right, but it does indicate that I have some experience with the subject and knowledge of how the term is actually used.
204.9.220.36 (talk) 21:08, 6 June 2016 (UTC)

Overlinking in lead[edit]

Case law and precedent both redirect to the same page, so IMHO it's confusing that the parenthetical citation in the opening of the lead has a wikilink on both terms: Common law (also known as case law or precedent) is law... Readers who aren't familiar with editing wikipedia will probably think there was a mistake and that there must be a separate article on case law out there, but they just can't figure out how to get there. I removed the links the other day, but someone put them back. Besides the reason I just explained, I also removed them because (a) MOS:LINK says not to link the boldface words in the opening sentence of the lead and (b) later on in that same sentence there's a wikilink on "precedential", which also redirects to the "Precedent" article and (c) I don't like the way it looks. :) MOS aside, it doesn't really make sense to say, "Common law (aka precedent)" and link to another article, because if "common law" is synonymous with "precedent", then I should already be on the right page to read about precedents. If "precedent" has multiple meanings and the "precedent" in the other article doesn't share exactly the same meaning as the "precedent" that's synonymous with "common law", then again, it doesn't make sense to wiklink it in that context, because the other page would be talking about something slightly different. In any case, people can click the link a little later on in the sentence if they're dying to read about precedents. Also, if they really are synonymous, should there be 2 articles? PermStrump(talk) 21:42, 3 June 2016 (UTC)

Interesting set of observations. Thanks.
"Common law" has multiple definitions, the most important one of which is synonymous with "case law." So the two articles do have a significant overlap. But they're also very different. One is cause, the other is effect. One is the atomic phenomenon, the other is the emergent property. "Common law" has additional meanings (though less important) that are not synonyms for "case law." So they are certainly two separate articles. The relationship between "common law" and "case law" is such that they should not be the same article (especially since they're both already so large), but so close that it violates common sense and the whole purpose of linking not to link them.
"Case law" and "precedent" are synonyms in some senses, and not in others, but the concepts are so closely linked that it makes no sense to split them -- you can't understand one without understanding the other. They are not the same, but the relationship between the two is totally hand-and-glove. (They used to be two separate articles -- so the concepts are separate -- but the two were nearly perfectly redundant in content, it became clear that keeping them separate was creating a host of problems, and led to confusion and lack of clarity. So they were merged years ago.) Both has senses in which they are synonyms for "common law."
So there's the background that sets up the logical relationships that should be clear to readers. Now let's look at your question. In MOS:LINK, are you referring to this sentence? (italics added):
Links should not be placed in the boldface reiteration of the title in the opening sentence of a lead.
(footnote explaining the main text--not the main text itself) Many, but not all, articles repeat the article title in bold face in the first line of the article. Linking the article to itself produces boldface text; this practice is discouraged as page moves will result in a useless circular link through a redirect. Linking part of the bolded text is also discouraged because it changes the visual effect of bolding; some readers will miss the visual cue which is the purpose of using bold face in the first place.
This is a much-more-nuanced sentence than "not to link the boldface words in the opening sentence of the lead" -- MOS:LINK says not to link the reiteration of the title (that is, MOS:LINK says don't link the first two words of the article "common law") to itself. As I read it, this sentence of MOS:LINK doesn't say anything about linking or not linking other bold words in the first sentence that come after the "reiteration of the title," especially where the link is not to itself.
Do you read MOS:LINK the same way I do?
By the way, as one who trained first as an engineer (and thus eminently practical), and now practicing as a lawyer for decades (so my writing is my most important tool -- first and last, it has to communicate meaning) my feeling is that perhaps "I don't like the way it looks" and any pedantic concerns for style and appearance should be subrogated to clarity? In my world, no one would ever, ever, ever advocate "style" if it compromised meaning and clarity. That is, if MOS:LINK discourages this linking, then I would suggest that MOS:LINK needs to be refined slightly. (Interestingly, this article -- common law -- is about the process of recognizing that when the "rules" don't give the "right" results, judges change the rules. Maybe that's what should happen here.)
Of course any alternative suggestion would be welcome.
98.229.147.75 (talk) 01:31, 4 June 2016 (UTC)
MOS:BOLDSYN Same applies to synonyms. The boldface words are supposed to redirect to the same article. Since they don't in this case and since they're closely related, but none synonyms, they should not be in bold. "Also known as" should probably be changed to "Closely related to." PermStrump(talk) 17:29, 4 June 2016 (UTC)
I'm not sure that this responds to my question or addresses the facts I laid out, nor does it address the limitation of MOS:LINK that confine applicability to only "reiteration of the title." Because I slightly misstated my question, I don't think the answer applies accurately to these facts. I slightly rewrote my question to you to be a bit more accurate and to try to focus more precisely.
But lets leave that aside, and solve the problem as you perceive it. What would you suggest?
98.229.147.75 (talk) 18:02, 4 June 2016 (UTC)
If that's your view, PermStrump, may we take it that you support proposed version P above? Qexigator (talk) 22:12, 3 June 2016 (UTC)
Qexigator, The logical connection between linking and not linking, vs entirely different sentences is -- what? 98.229.147.75 (talk) 01:31, 4 June 2016 (UTC)
@Qexigator:: Yes, I agree with your proposal and will comment above. @98.229.147.75: I think it was a logical connection for Qexigator to make, considering my second comment says, "since they're closely related, but none synonyms, they should not be in bold." This seems like a situation where a hat note might be appropriate. e.g.,
See also: Case law
Boldface is supposed to be reserved for the title and one or two alternative titles (if applicable). As alternative titles, the words in bold are supposed to be made to redirect to the current article, so the bold words should be an iteration of the title and wikilinking them would be redundant as it would bring the reader back to the same article they were already on. If it brings them to a different article, then those words should not be in bold because they're not alternative titles for this article. PermStrump(talk) 02:26, 5 June 2016 (UTC)
So it seems that unbolding "case law" and "precedent" is the right thing? Which I have implemented.
A "see also" doesn't communicate the full import. The lead dictionary in the field -- the current edition of Black's -- gives CASELAW as a synonym for the first definition. Another important dictionary is Garner's Dictionary of Legal Usage, which states “most commonly within Anglo-American jurisdictions, common law" has the sense of being "law" rather than a "system." So "case law" isn't just a "See also," in the lead, primary, most-common sense, it's a synonym. The article loses a lot if it doesn't communicate that -- indeed, that refusal to accept the synonymous nature of the two terms is what's giving FuriouslySerene and Qexigator such heartburn. I really don't understand the positions those two take throughout this Talk page -- it's there in all the modern specialist dictionaries. Why the reluctance to accept that that's what the word means?
204.9.220.36 (talk) 21:11, 6 June 2016 (UTC)

Proposal[edit]

My comment in the Rfc section above ("While some recent IP edits may be seen by others as at least out of place... )" may be taken as a preamble introducing the proposal below.

Whether or not "connotations" is retained (with numbering or not), presentation to readers of the article's content would be improved with a lead-in portion in the main text (not in the opening lead) based on authoritative sources, such as OED and Black, which describe the use of the phrase "common law", referenced in those sources to their primary sources, such as literature or law reports. Below are a longer and shorter version of a proposed text, for discussion:

  • Longer version
Description
In Oxford English Dictionary (1st edition 1933) "common law" is 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 ecclesiasical 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". The current OED online[27] presents: common law: 1. The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1 The body of English law as adopted and adapted by the different States of the US. Compare with civil law.
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."[1]
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.
  1. ^ Black's online[[1]] entry for "COMMON LAW", on page 345/6.
Connotation
Connotations of the term common law in current use continue to vary according to context. ...
  • Shorter version
Description
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 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.Cite error: A <ref> tag is missing the closing </ref> (see the help page).
Connotation
Connotations of the term common law in current use continue to vary according to context. ...

Qexigator (talk) 11:54, 4 June 2016 (UTC)shorter version added 23:13, 4 June 2016 (UTC)

I have gone ahead and done Shorter and Longer, as here[28]. Qexigator (talk) 17:38, 5 June 2016 (UTC)

+ For an example of the current use of "decisional law" among US lawyers, see excerpt reproduced from American Legal Systems (Toni M. Fine, LexisNexis)).[29] Qexigator (talk) 15:22, 4 June 2016 (UTC)

As the Prego commercials say, "It's in there." https://en.wikipedia.org/wiki/Common_law#Connotation_4._Informal_uses_among_nonlawyer_laypersons I added it at your behest (see https://en.wikipedia.org/wiki/Talk:Common_law#Request_for_comment_on_three_connotations" Comment of Qexigator 1 June 2016 (UTC) + 05:45, 2 June 2016 (UTC)) -- consider it yours. Connotations 4 and 5 are about historical and deprecated uses that are different than current usage -- as your own dates confirm, that's exactly where this belongs. Do anything you want with it, Connotation 4 in particular. This is a great place to discuss obsolete and deprecated 1968 Black's definition and the 1933 OED definition and all the 19th century stuff you want. Go to town with all the etymological and historical information you can find (it's a little bizarre to spend almost as much space explaining and justifying your sources as explaining the topic, but, hey it's your choice).
But that doesn't change the basic fact -- your approach is not set forth as an important or lead definition in any current source created for and relied on by specialists, and runs counter to the lead definitions that are in such sources. Your approach does not reflect a current or precise definition -- it's not even correct. It's very helpful to include this, precisely so that Wikipedia can explain why it's wrong. But it would be silly, indeed misleading, to make this any kind of "lead-in" or preamble.
See why I asked you "Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again"? We've gone from a concern for numbering -- which turned out to be unwarranted when the single best source (the current Black's dictionary) turns out to use almost identically the same numbering -- to a rewrite of the lead paragraph -- which turned out to be unwarranted when I pointed out that your preferred source is 50 years old, and the publisher recognized that it was erroneous and replaced it almost 20 years ago -- and now this. It's time to call it a day, Qex.
98.229.147.75 (talk) 15:40, 4 June 2016 (UTC)
Great idea to break out the Black's 1968 definition for separate discussion. It belongs in Connotation 4, so that's where I put it. I took your suggestion nearly verbatim. I didn't go back and check that your quotes were accurate--you might want to do that for yourself. Thanks for the helpful suggestion.
I've pointed out all the problems with the OED 1933 and Black's 1969 4th before, and you've been silent in response. In the law, silence (when you have an opportunity to respond) is taken as acquiescence, so I will assume you're happy with including a list of reliability problems in the article. It would be misleading to present Black's 1969 as if it were a reliable source, when even the publisher no longer stands behind it.
98.229.147.75 (talk) 00:41, 5 June 2016 (UTC)
Noted.[30] Qexigator (talk) 06:39, 5 June 2016 (UTC)

IP is at it again: his edit was not at the "behest" of ...Qexigator (talk) 15:22, 4 June 2016 (UTC)

IP has been at it again, with comments which seem to be based on a supposition that editors must write as if under the domination of some American law enforcement agency, and IP is the enforcer! --not to mention some poor edits pretending to be as proposed by.... Qexigator (talk) 06:04, 5 June 2016 (UTC)

No, my supposition is that we're trying to explain accurately, not advance some agenda of one uninformed editor. I've noticed that you have NEVER either countered to explain that Black's 10th is anything other than reliable, you seem to not disagree what Black's 10th stands in genuine opposition to the position you want to state, and you have never expressed any disagreement with my catalog of the multiple errors in the OED 1933 and Black's 1968 definitions. If you don't disagree that your sources are wrong, why are you continuing to push them? Unless you explain that there's some error in the modern dictionaries, some error in my analysis of your obsolete and deprecated sources, or some way to reconcile the old and the new, your insistence on text -- with no supporting rationale -- is simply irrational.
There are two rational ways for Wikipedia to go on this issue --
  • Include your paragraph, but explain that one of your older sources has been deprecated by the publisher. Both are erroneous, and the errors can be shown by comparison against modern, specialist sources.
  • Simply not include erroneous material
I am perfectly comfortable with either approach. The only thing I will stand in your way on is your presentation of brazen error, drawn on 50-and-80 year old sources that have been deprecated and are not reflected in modern sources, without explaining that your old sources are superseded, as if it had any modern currency.
There's a simple principle at work here. Sources that may have been considered "reliable" when they were published can become "unreliable" later. That's what we've got here. Your 1933 and 1968 sources are no longer reliable. You are not relying on "reliable sources." They are just plain wrong.
98.229.147.75 (talk) 11:26, 5 June 2016 (UTC)
Just so you've got it in one place, the errors in the OED 1933 defintion include the following:
  • It is incorrect--“common law” is written. Legal systems only function when the rules exist in writing so they can be applied consistently. Common law exists only to the extent it is embodied in written opinions of judges and similar tribunals.
  • It is incorrect--“common law” is not embodied in commentaries, but only in the case law itself. A commentary no more embodies "the law" than a travel guide embodies the destination. Commentaries are only “finding aids” and opinions of the authors, not law themselves.
  • It is incorrect--“common law” is not only administered by "the King's courts," but rather by all courts in all common law countries, not just England, including many where the influence of "the King" ended decades or centuries ago. Strikingly in connotation 1 (see below), “common law” practice governed courts of equity, which were specifically set up to be not "the King's courts."
  • It is over-inclusive--much of the practice of English courts from centuries ago is not part of the “common law.”
  • It is under-inclusive--much of what we now call the “common law” is of recent vintage, in decisions as recent as yesterday. Any connection to “ancient usage” is at best irrelevant today, except as a historical footnote. “Ancient usage” is irrelevant to a definition or precise understanding.
The errors in the Black's 1968 definition include teh following:
  • In 1999, the publisher hired a new editor, who redid the entire dictionary under much more careful lexicographic practices. When the editor and publisher recognized that the 1968 definition was incorrect, the 1968 definition was removed from the 1999 edition. No analogous definition is in today’s Black’s, and this definition is deprecated.
  • The 1968 Black’s definition is both under-inclusive and under-inclusive. For example, “common law” includes case law up to the present; it did not end at the American Revolution. (The Revolution is important for the scope of the Seventh Amendment, but irrelevant to the definition of “common law.”) “Common law” is not limited to England; common law is administered in roughly one hundred jurisdictions, most of which are enumerated in the opening paragraph of this article.
  • Common law is distinct from equity law for some purposes, and equity law is a subset of “common law” for other purposes. The Black’s definition, which states that common law is “distinct” from equity, is imprecise to the point of being wrong.
  • The definition of “federal common law” is simply wrong. For example, state common law and federal common law influence each other extensively. Federal courts decide state law issues, and state courts decide federal issues--these decisions can have significant precedential value in the other court system. (The 1968 Black's definition is nearly unchanged from its original drafting in the 1890s, when the two systems behaved differently vis-a-vis each other than they have since 1938. The failure to update this definition when this relationship changed in 1938 is one symptom of the rather haphazard approach taken in earlier editions of Black's.)
Your statement "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" is pure gibberish. The term has the same meaning (and set of meanings) in both. The conflict is between the incorrect older sources you want to promote vs. the newer, specialist sources (which, apparently, you don't disagree with).
As I pointed out yesterday, citing an old source as if it were a current reliable source, without pointing out known subsequent sources that deprecate the earlier, is one of the forms of intentional deception that gets lawyers sanctioned, potentially up to disbarment. I pointed that out, yet you quite intentionally head that direction. What are we to conclude?
If you want to move the ball forward, any rational person would come forward with an explanation on each of these points. Simply ignoring problems, without comment, is the mark of a less-than-rational person.
98.229.147.75 (talk) 12:05, 5 June 2016 (UTC) amended 13:23, 5 June 2016 (UTC)

Noted, IP has acknowledged that we are not advancing some agenda of one uninformed editor, presumably such as the IP, who appears to be well out of his depth about the topic and how to present the information to readers. The rest of that comment is a travesty of my position, and a further example of a tendency to hector and traduce. He has been advised here[31] how his time could be better employed in the aspiration to "steer a couple of pro se's away from relying on bogosity". Qexigator (talk) 15:49, 5 June 2016 (UTC)

My only agenda is correctness. Since you haven't made any rebuttal of the showing that your approach is inconsistent with modern, specialist sources, and you've offered not a word of rebuttal to the catalog of inaccuracies I set out here, I wonder how you avoid the logical consequence of that silence and failure to engage. In any forum, silence on this type of showing of error is acquiescence to the showing-- in this case, that your approach is obsolete, deprecated, and incorrect.
To be clear here, I think the text you offer is fine, it only has to be changed from present tense "can" to past tense, with an explanation for why your proposed text has passed out of usefulness. You've done a great job of explaining a historical artifact. However, your approach is end-to-end inaccurate as a description of anything in the present day.
Your response to each of the above points is probably essential at this juncture.
98.229.147.75 (talk) 18:42, 5 June 2016 (UTC)

It may be surmised that most contributors are disinclined to respond to an IP who engages in gross incivility, overstatement and mistatement. For information, the present tense "can" is, for reader's convenience, sourced from a current online website[32], but the link to the OED article is not appropriate there, and I have removed it. Qexigator (talk) 19:34, 5 June 2016 (UTC)

Those with any experience in such matters know that it's simply pointless to base an argument on an everyday dictionary for the meaning of a specialized term. In any legal proceeding, everyday dictionaries are not considered "reliable sources" at least when they conflict with specialized dictionaries from the specialized field. Do you have any basis to believe that that rule should not control here?
Likewise, in the law, when a source publishes a later version of a document that replaces an earlier version, the later version controls, and the earlier version is no longer a reliable source (except as a historical record). Do you have any basis to believe that that rule should not control here?
I have no doubt that one can find several non-specialist dictionaries that state an informal (to the point of incorrect and misleading) definition. But read the Oxford online definition yourself -- I suspect you will see the flaws instantly. If you read it, you'll agree that it doesn't even agree with your view of the topic. The Oxford online definition is both under-inclusive and over-inclusive. (Which pains me, since Oxford University Press is my publisher.)
98.229.147.75 (talk) 20:31, 5 June 2016 (UTC) updated 22:05, 5 June 2016 (UTC)
Input error corrected.[33] Qexigator (talk) 22:17, 5 June 2016 (UTC)

I fully concur with Qexigator and FuriouslySerene's assessment of the situation above. FuriouslySerene has clearly and cogently explained his/her concern---while it is clear that the term "common law" has multiple related connotations, and that sources like Black's Law Dictionary do support that fact, nothing in the article shows that the particular sequence or typology given therein is in common use. In other words, the vast majority of lawyers in the common law world will agree that the first three connotations are all equally valid (that is, when such connotations are explained in detail to them), and also agree that they have to be distinguished from various historical meanings, but they will have no idea what you are talking about if you walk up to them and spontaneously start talking about "connotation 1 of the term 'common law'" without explaining what that is. So the article should expressly signal in its text that it is arbitrarily imposing a particular typology in order to efficiently convey the sheer complexity of the concept, but that the numbers thus imposed are not actually in common use in the legal field at this time. The fact that the anonymous IP editor is not engaging on that issue and keeps rambling about tangents is quite telling. --Coolcaesar (talk) 07:12, 6 June 2016 (UTC)

Thank you Coolcaesar. Somehow, 4 weeks and dozens of comments later, the IP still doesn't get this basic point. I think you should move this comment to the RfC section by the way, just for the closing editor's sake. And I don't think we should retain the format since that would be WP:OR (and it's entirely unnecessary and overly complicated and does not help the reader understand the text, in my opinion). FuriouslySerene (talk) 13:33, 6 June 2016 (UTC)
Thanks Coolceaser. I added that very explanation in a footnote almost as soon as the issue surfaced -- I didn't discuss it on the Talk page because I engaged with it in the text. I can't do it now, but I'll move the footnote into the text within a day or so. Does that close out the "connotations" issue? 98.229.147.75 (talk) 14:18, 6 June 2016 (UTC)
Ah, I see Qexigator already took care of it. Thanks.
Now we come to the other problem. This is another round with an editor that is singing the tune of the Cliven Bundy / no Sixteenth Amendment crowd, the folks that insist that the common law ended with the American Revolution, that we still operate under the common law as it existed in 1789, and all subsequent legal developments are unconstitutional. Up the page, you'll see that Qexigator pointed us to the National Liberty Alliance web site. Whether Qexigotor is or is not part of this bunch, I don't know -- but the points he wants to introduce are the same ones that Coolceasar and Famspear and I have repelled in the past.
I believe the article should, first of all, be accurate. As one example, "the common law" is as recent as the Supreme Court's opinion from 10AM this morning, not frozen in time in 1789. In today's world, Antonin Scalia and Steven Breyer are the relevant authors of the common law; Coke or Blackstone are not "law" -- they're just commentaries. The article should not imply otherwise.
Similarly, other artifacts of the 1890 description from Black's 1st Ed -- which had carried forward almost verbatim though the 1969 edition, despite Erie, FRCP, merger of law and equity, and the Field Code and all the rest -- should not be presented as current fact. Fine to discuss historical artifacts if they are labeled as obsolete, but it's not OK to present them as current reality.
That's the current point of disagreement.
98.229.147.75 (talk) 14:36, 6 June 2016 (UTC)
I concur with 98.229.147.75 -- Quexigator's proposal may track older dictionaries, but those older dictionaries are themselves not accurate. I first got Black's Fifth Edition (1970s) when I started practice. I recall reading this specific definition and thinking "this doesn't tell me a god damn thing." I remember when Black's Seventh came out in the late 1990's -- the clearer. more-correct approach was visible on every page. I urge that we track Black's Tenth, and throw earlier editions on the ash heap of history. 204.9.220.36 (talk) 21:34, 6 June 2016 (UTC)

Contrasts between common law and civil law[edit]

The section "Contrasts between common law and civil law systems" does not read well. It goes back a long way (October 2009),[34] but it is still in a raw state, and unsourced. I will go ahead and replace it, but maybe more is needed here and in other parts of the article where common law is compared with civil. Qexigator (talk) 09:50, 11 June 2016 (UTC)

...done.[35] (talk) 15:08, 11 June 2016 (UTC) + 15:59, 12 June 2016 (UTC)

+ Also, "Common law pleading..." trimmed and sourced.[36] Qexigator (talk) 18:59, 11 June 2016 (UTC)

Draft outline[edit]

There is a draft for an outline on common law at Wikipedia:WikiProject Outlines/Drafts/Outline of common law if anyone is interested. -- Ricky81682 (talk) 06:50, 25 June 2016 (UTC)

American focussed[edit]

The Common Law is the English Common law. So why is the article written almost entirely from an American perspective?Royalcourtier (talk) 21:41, 19 August 2016 (UTC)

It's a problem I agree. If you read some of the talk page above you'll see a lot of the article was written by an American lawyer who didn't really grasp the whole global concept of the term. You can definitely help out with that. FuriouslySerene (talk) 22:51, 19 August 2016 (UTC)

Common law is not a legal system. It is a parallel judicial system to the legal system. Nearly every court in the United States, (all state courts, circuit courts, county courts, and all federal courts) are courts of record except a minuscule handful of municipal courts.

A court of record has the power to fine or imprison for contempt. It proceeds under the common law, not a statute or a code. A court that proceeds using statutes and codes is called a legislative, inferior court. A court that proceeds under common law is called a superior judicial court, and can collaterally sue an inferior court and void its orders. By ordinary proceedings are understood the regular and usual mode of carrying on, a suit by due course at common law. Special proceeding is a generic term for all proceedings in courts of justice which are not ordinary actions. When you receive a summons for a civil or criminal matter and appear, you find the court of record proceeds with statutes and codes instead of under the rules of common law because the court presumes (without proof) and assumes (acts under the presumption) you are under its jurisdiction, and uses various methods to get you to agree to accept responsibility for the person charged in that jurisdiction. The person has a name that is spelled like your name and sounds like your name, but has a different meaning. This is called a homogram.

The fictional person who exists only on paper is not the living man or woman. But once you or the judge enters a plea of any kind, you are under the court's jurisdiction. Once you answer yes, you understand the charges, you are under the court's jurisdiction. If you declare no, I do not understand (stand under) the charges, the court cannot proceed. Jurisdiction can be challenged at any time during the proceedings, and the court cannot proceed until it proves its jurisdiction. You may require a court of record and trial by jury because you are guaranteed common law due process ( trial by jury) by the 5th and 14th amendment.

Legal and lawful do not mean the same thing. Everything Hitler did was legal, but it was not lawful.

The opening sentence in the main article is incorrect. "A common law legal system is characterized ..." Common law is not a legal system. — Preceding unsigned comment added by 2602:306:C466:F8B0:2CD4:DD7F:E4F1:7138 (talk) 17:49, 13 September 2016 (UTC)

No, sorry, that's incorrect. You've been reading gibberish on the internet. Famspear (talk) 18:08, 13 September 2016 (UTC)