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The system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws.
Body of law based on judicial decisions and precedent that has become the basis of the legal system in Great Britain and the United States (except in Louisiana, where civil law is the legal foundation). Many of the legal concepts in use today, including the law of contracts, are derived from common law.
The body of law that has grown out of legal customs and practices that developed in England. Common law prevails unless superseded by other law.
Example: In many disputes between neighboring landowners over damages from the activities of one or the other, the courts apply common law to reach a settlement.
Judge-made law, as contrasted with statutory law. This body of law originated in England and was in force at the time of the American Revolution; modified since that time on a case-by-case basis in the courts.
Is the body of judge‐made law that was administered in the royal courts of England (King's Bench, Common Pleas, Exchequer, and Exchequer Chamber)—in contrast with other bodies of English law administered in different courts, such as equity (see Injunctions and Equitable Remedies), admiralty, canon law, and the customary law of the borough and manorial courts. William Blackstone described the common law as the general customary law of the realm as interpreted by the royal judges, the “living oracles” of the law. The phrase “common law” is sometimes used in contradistinction to “civil law,” which describes the code‐based legal systems of continental Europe (and nations influenced by Europe) that descend ultimately from Roman law.
The common law was received in the American colonies and adopted as the basis of American legal systems after the Revolution in the state and federal constitutions. The Supreme Court is a common‐law court. The Court early held, however, that there is neither a federal common law of crimes (United States v. Hudson and Goodwin, 1812) nor a federal civil common law (Wheaton v. Peters, 1834). In American practice, the common law is one of two legal systems (the other being equity), now merged in all jurisdictions including the federal, that are the basis of the American legal order.
— William M. Wiecek
In modern usage, frequently used to denote unwritten law which is generally derived from cases decided by courts, and not from the express authority contained in a statute. As a general term the common law may express the general customs of English law (and those in legal systems derived from England, such as that in the United States), originating from its medieval inheritance, which refers to early laws, unwritten in form but administered by the common law courts.
The common law may also refer to the earlier development of English law administered by the common law courts before the Judicature Acts 1873-5. Then, the distinction between Common Law courts and the Court of Chancery which administered equity was an important one. After the Judicature Acts and especially since the Judicature Act 1925 which set up the supreme court, the courts have developed common law principles alongside doctrines in equity. In English law the Supreme Court is distinct from countries with written constitutions that provide for a Supreme Court to have ultimate legal authority. The Supreme Court does not have such a jurisdiction in the United Kingdom as its decisions may be overturned by Act of Parliament.
The common law includes both civil and criminal law. The former refers to the law of contract and tort. The latter refers to the law of crime.
As the common law is developed by the judges, so it is not found in a written form comparable to statutory law. Instead the principles of the common law have developed gradually on the strength of decided cases. The inherent flexibility of the common law has been a strength of the English legal system and permitted continuity with change. Milsom has written ‘the common law is the by-product of an administrative triumph, the way in which the government of England came to be centralized and specialized during the centuries after the conquest’ (Historical Foundations of the Common Law, 1981). The future of the common law is constrained by the predisposition to statutory enactments as part of the development of European law. The vast detail and complexity of the law is more often to be found in European directives and laws as a requirement of modern government. For that reason, the term common law may best be understood to refer to techniques of interpretation and analysis employed by judges to understand and interpret statutes. Judges will continue to shape and guide the future development of English law, drawing on the flexibility of principles inherent in the common law tradition.
— John McEldowney
For more information on common law, visit Britannica.com.
The origins of the common law lay in the justice of the king, exercised through his
The king's justice was dispensed by the itinerant justices of the curia regis. When the courts of Common Pleas, King's Bench, and Exchequer developed as separate entities, the law they applied was the common law. By the time of Edward I there was in existence a ‘common law’—the law administered in the king's courts throughout the land and therefore ‘common’ to the whole kingdom.
The term ‘common law’ came to be used of the English legal system and, generally, to describe a system where the law is built up through the decisions of the courts. The term is therefore used to describe rules of law which have been established by the courts as against laws which are formally enacted by Parliament (statute law).
Law as founded in custom and precedent. It is therefore neither the creation of a sovereign nor dictated or invented by legal dictation, but handed down in a continuous process of interpretation and reinterpretation of the significance of previous custom. It is more reverenced by social conservatives such as Blackstone or Burke, and by lawyers themselves, than by reformers such as Bentham.
Law made by judges through decisions in specific cases is known as the common law. These case-by-case decisions were used again and again in similar cases and thereby become customary, or common to all people living under the authority of the court of law. The common law used in the United States originated in England and was compiled in the 18th century by Sir William Blackstone in his Commentaries on the Law of England.
The English common law was taken by emigrants from the Old Country to the American colonies. After the American Revolution, English common law became the foundation of legal procedures in the United States of America. Today, the legal system in every American state, except Louisiana, is based on the Anglo-American common law. In Louisiana, once a French colony, certain French legal customs have been maintained. For instance, the word parish, derived from the French, is used instead of county to label administrative areas within the state.
Statutory law, the written law passed by a legislature, overrides the common law. Many statutes, however, are rooted in the common law tradition and are interpreted by judges according to this tradition.
There is no federal common law because the federal government functions on the basis of a written constitution, through which the people delegate power to the government. Federal judges, however, apply the common law to cases involving people from different states when there is no federal law that fits a particular case.
The U.S. Supreme Court's use of precedents in deciding cases is an example of the common law heritage. In its exercise of judicial review in particular cases, the Court sets precedents that apply to future cases. If a statute in a particular state is held unconstitutional, for example, this decision is applicable to similar statutes in all other states. The Supreme Court made this point strongly in Cooper v. Aaron (1958), in which the Court upheld the application of its decision in Brown v. Board of Education (1954), which concerned Kansas, to enforce an end to segregation of public schools in Arkansas.
See also Cooper v. Aaron; Precedents, judicial
Sources
In 1765, in the first volume of his Commentaries on the Laws of England, William Blackstone explained that the law had two main parts: the statute law and the common law. The common law consisted of the general customs of the realm. It was often called an un-written law because the common-law principles could not be found in any one place, but rather in the decisions of judges in thousands of individual cases. Those customs, built up over the generations by judicial decisions and cataloged by scholars, represented (supposedly) the wisdom of the ages. Blackstone thought such a law was entitled to respect precisely because it represented practices stretching as far back as the human mind could recall. Such immemorial usage testified that the common law was correct. He was so proud of the common law that he called it "the perfection of reason."
Blackstone defined the common law in static terms, which made change difficult. Judges had to follow the precedent of the unwritten common law unless it was patently absurd or unjust—a high standard to meet. Thus many believe, with Francis Bacon, that judges are expounders and not makers of the common law. The common law in Blackstone's England was a body of principles arcane and difficult to understand, for sometimes the rationale underlying rules had been obscured by the mists of time. Nevertheless, it was also based on reason. That obscure but still rational law was difficult to challenge.
The Common Law After the Revolution
By the time of the American Revolution, however, an alternative understanding of the nature of the common law was emerging. Through the study of legal history, introduced by Matthew Hale's History of the Common Law (1713), both English and American lawyers began to understand that the common law evolved and that the law seemed to support a growing emphasis on liberty. An increasing historical consciousness led to views like that expressed by the scientist Joseph Priestley, who emigrated from England to America shortly after the Revolution: "Many things in the present state of the law are unintelligible without the knowledge of the history and progress of it." At the same time, the law became more complex to accommodate increases in commerce. So, faced with a rapidly expanding body of law and a sense that the law had changed in the past, American judges began to think of the common law as an evolving, rather than a static, body of principles. They spoke favorably of recrafting the common law to bring it into line with American values.
That recrafting took place along many fronts, including changing the rules for distribution of property at death. Where English rules gave preference to the eldest male child, Americans distributed property more equally to children (and grandchildren) at death. Across areas from property to contract to tort law, judges reexamined English precedent to see whether it fit American needs. Often those judges spoke about their desire to promote economic growth—for example, by limiting liability of corporations for harm they caused to neighbors—and at other times of the need to promote morality. The law was made more humane to provide at least minimal protection to families from creditors, to wives from abusive or prodigal husbands, and even (on rare occasions) to tenants from landlords. The decisions frequently were phrased in terms of expediency and, in rare instances, in terms of humanity. The Supreme Court Justice Joseph Story wrote in the 1830s about the common law as a mixture of ancient tradition and modern, commercial needs.
Even as conservative judges were acknowledging their ability to remake the law to bring it into line with American views of economy and society, they were careful to portray the common law as evolving slowly. They needed to guard against the image that the common law might effect rapid change, for they needed to preserve the law's majesty. Few maintained the fiction of Blackstone's era that the law had been the same from time immemorial, but many continued to believe that judges had little power in remaking the law. The dominant view of the early nineteenth century was that judges were expounders of the common law and only had the power to make incremental changes.
Questioning the Common Law
Many outside the legal system saw the issue differently, however. Those outsiders saw the common law not as the perfection of reason but as the perfection of nonsense. In speeches and newspapers, outsiders to the legal system—usually adherents of the Democratic Party—attacked the common law as the creation of judges, who were making law to protect property against democracy. These debates occurred at a time when judges were using common-law doctrines to outlaw union organizing, to require the return of fugitive slaves, and to protect merchants and creditors at the expense of consumers and debtors. The critics of the common law ridiculed it as an arbitrary collection of abstruse rules. William Sampson's attack was among the most vitriolic. He thought Americans "had still one pagan idol to which they daily offered up much smokey incense. They called it by the mystical and cabalistic name of Common Law." Some principles were ancient, others recent, but in all instances, the common law sat "cross-legged and motionless upon its antique altar, for no use or purpose but to be praised and worshiped by ignorant and superstitious votaries." Many Americans agreed with Ralph Waldo Emerson's call in his 1836 book Nature for "our own works and laws and worship."
Related to that attack on the common law was a movement to limit the power of judges. Around 1810 the United States Supreme Court prohibited the creation of "common law" crimes; after that, in order to be prosecuted for crime in federal court, the accused had to be charged with violating a law passed by Congress rather than a rule created by a judge. A related drive for codification of other laws would have similarly limited judges' power to make new rules in such areas as contract, torts, property, and court procedure. The codification movement had two parts. The more radical branch, advocated by people like Thomas Jefferson and Sampson, sought to limit judges' discretion; a less radical branch, advocated by moderates and conservatives like Timothy Walker and Hugh Legaré, sought merely to clarify the law that judges applied.
Following the Civil War, the common law was increasingly seen as the creation of its history, and the trend toward decisions that facilitated economic growth seems to have continued. Proponents of the law and economics movement argued toward the end of the twentieth century that judges after the Civil War produced a common law that promoted efficient use of resources; they claimed that judges have long been concerned with creating economically efficient common-law rules. Oliver Wendell Holmes's 1881 book The Common Law was an important part of the postwar recognition that law evolved and that it was the product of historical events, rather than simply the result of reason. Holmes's book, focusing on experience rather than logic, is often seen as the legal analog to Charles Darwin's Origin of Species, focusing on biological processes rather than divine ones.
Holmes helped popularize the understanding that law evolves, but it was left to the legal realists of the early twentieth century, who linked that insight with a systematic critique of the rules that judges announced, to show that judges' own attitudes were central to making the law. Justice Benjamin N. Cardozo's 1921 book The Nature of the Judicial Process acknowledged that judges ought to look to their surrounding society, as well as precedent, for guidance in deciding cases. He engaged in the heresy of treating the "judge as legislator." That view of the common law reached its height in what the U.S. district judge Joseph Hutcheson called the judicial "hunch"—the belief that judges decided cases based on instinct rather than on precedent. Similarly, Karl Llewellyn expressed "rule skepticism," which debunked the priority of rules in judges' decision making. He focused on the importance of the sentiments of judges, lawyers, and the community in deciding cases. The U.S. district judge Jerome Frank took that a step further with his skepticism toward both law and facts. Frank's Law and the Modern Mind (1930), which offered a psychoanalytic interpretation of judges, ridiculed Americans' attachment to what he viewed as the myth that law could be certain. He argued that judges decided cases according to their own personal prejudices and foibles.
Interpretations Since World War II
After World War II there was a growing interest in the use of the common law as a tool for social reform. While some academics spoke of the legal process school—the belief that there were methods of common-law and statutory interpretation that were independent of politics—other academics and jurists on both ends of the political spectrum urged judges to use their common-law power to remake the law. Where once judges had wielded the law to limit corporate liability, some began to expand tort law to make it easier for injured parties to recover in areas from hazardous working conditions to dangerous drugs to professional malpractice. Related developments in contract law relieved consumers with little bargaining power from unfair bargains, and changes in landlord-tenant law gave tenants more power. Meanwhile, judges from the right of the political spectrum, particularly after 1980, became increasingly concerned with considerations of economic efficiency. In areas from antitrust to environmental regulation and contracts, judges drew insights from economics to reshape the common law, such as the idea that sometimes monopolies are beneficial to consumers because they reduce costs.
In modern America, the common law continued to be the product of generations of judicial decision, but at the beginning of the twenty-first century it was under-stood to be the product of judge-made innovations. However, a more static conception of the common law has been reemerging in the United States Supreme Court. In several late-twentieth-century lines of cases, the Supreme Court limited the power of the courts to reinterpret the law. In 1993 in Lucas v. South Carolina Coastal Commission, the Court concluded that the state of South Carolina must recognize the traditional property rights of an owner of coastal property, primarily the right to build along the coast. A South Carolina court could not depart from the long-established precedent that property owners had a right to build along the shore. Then, in 1997 in City of Boerne v. Flores, the Supreme Court rejected the argument that Congress had the power to make its own findings about what constituted violations of constitutional rights. It there by protected the right of courts to be the arbiter of what constituted violations of constitutional rights. Together those lines of decisions suggest that the Supreme Court was protecting courts' power under the common law while limiting the ability of judges to alter that law.
Yet every day, as has happened for centuries, judges grapple with new facts and struggle to apply precedent. These judges are using the common-law system, which affords them the power to apply old precedent to new cases and to remake old precedent when necessary.
Bibliography
Brophy, Alfred L. "Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists." Boston University Law Review 79 (December 1999):1161–1213.
Holmes, Oliver Wendell. "The Path of the Law." Harvard Law Review 10 (1897):457–478.
Horwitz, Morton J. The Transformation of American Law, 1780– 1860. New York: Oxford University Press, 1992.
Hutcheson, Joseph C. "The Judgment Intuitive: The Function of the 'Hunch' in Judicial Decision." Cornell Law Quarterly 14 (1929):274–288.
Karsten, Peter. Heart versus Head: Judge-Made Law in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1997.
LaPiana, William P. Logic and Experience: The Origin of Modern American Legal Education. New York: Oxford University Press, 1994.
Llewellyn, Karl. "A Realistic Jurisprudence—The Next Step." Columbia Law Review 30 (1930):431–465.
Posner, Richard. "A Theory of Negligence." Journal of Legal Studies 1 (1972):29–96.
Sampson, William. Sampson's Discourse, and Correspondence withVarious Learned Jurists, upon the History of the Law. Washington, D.C.: Gales and Seaton, 1826.
Story, Joseph. "Common Law." In Encyclopaedia Americana. Edited by Francis Lieber. Volume 3. Philadelphia: Carey, Lea and Carey, 1829.
Walker, James M. The Theory of the Common Law. Boston: Little, Brown, 1852.
—Alfred L. Brophy
All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.
Characteristic Features of Common Law
The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.
Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.
Development of Common Law
Early common law was somewhat inflexible; it would not adjudicate a case that did not fall precisely under the purview of a particular writ and had an unwieldy set of procedural rules. Except for a few types of lawsuits in which the object was to recover real or personal property, the only remedy provided was money damages; the body of legal principles known as equity evolved partly to overcome these deficiencies. Until comparatively recent times there was a sharp division between common law (or legal jurisprudence) and equity (or equitable jurisprudence). In 1848 the state of New York enacted a code of civil procedure (drafted by David Dudley Field) that merged law and equity into one jurisdiction. Thenceforth, actions at law and suits in equity were to be administered in the same courts and under the same procedure. The Field code reforms were adopted by most states of the United States, by the federal government, and by Great Britain (in the Judicature Act of 1873).
Bibliography
See O. W. Holmes, The Common Law (1881; new ed., ed. by M. DeWolfe Howe, 1963, repr. 1968); T. F. Plucknett, Concise History of the Common Law (5th ed. 1956); H. Potter, Historical Introduction to English Law and Its Institutions (4th ed. 1958); A. R. Hogue, Origins of the Common Law (1966); R. C. van Caenegem, The Birth of the English Common Law (1973); J. H. Baker, The Legal Profession and the Common Law (1986); R. L. Abel and P. S. C. Lewis, ed., The Common Law World (1988).
This entry is a subtopic ofLaw .
The common law was generally defined as the unwritten law, or lex non scripta, of England. It derived its authority from immemorial usage and "universal reception throughout the kingdom," as phrased by Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769). The common law was contrasted with written statutory laws enacted by Parliament. For some, like Sir John Davies (1569–1626), it was "nothing else but the Common Custome of the Realm" (preface to Reports, 1612). Indeed, the De Laudibus Legum Angliae (c. 1470; In Praise of the laws of England) of Sir John Fortescue (c. 1395–c. 1477) declared that "the realm has been continuously ruled by the same customs as it is now." Most, however, found it more accurate to describe the system as customary in origin. As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his Reports (1600–1615), it was "the grounds of our common laws" that were "beyond the memorie or register of any beginning." By the mid-seventeenth century, Sir Matthew Hale (1609–1676) made it clear that the "immemoriality" of the common law did not imply that it was unchanging, it only indicated that the precise origin of institutions (such as Parliament and the jury) and rules (notably of landed property) predating 1189 could not be traced. Their continued existence carried the presumption of both original and continued popular consent. As Hale wrote in his History of the Common Law (1713), the common law was "singularly accommodated" to the "Disposition of the English Nation" and "incorporated into their very Temperament," while also reflecting their experience.
As Coke pointed out in the first volume of his Institutes of the Laws of England (1628–1644), there were "divers lawes within the realme of England," including the prerogative law of the crown, the canon law practiced in the ecclesiastical courts, and the maritime law administered in the Admiralty. However, as John Selden (1584–1654) put it, "There are no laws in England but are made laws either by custom or act of parliament" (Commons Debates, 1628). These "particular laws" were included in the definition of lex non scripta, because their authority in England derived, according to Hale, from "their being admitted and received by us" either through statute or "by immemorial Usage and Custom in some particular Cases and Courts." They were subject to the control of the common law, which sought to keep their jurisdiction within its accepted boundaries or even, as in the early seventeenth century, to restrict them. Besides these particular laws, the lex non scripta also encompassed local and particular customs. Local customs, which originated in local practice in derogation from the general rules of common law, were recognized and enforced in the common law courts, but only if they were immemorial, continuous in usage, certain, and reasonable. Particular customs such as the custom of merchants (lex mercatoria) were also said to be part of the common law. In court, if any doubt arose about what the custom was, the evidence of merchants was received to inform the court.
In the first half of the seventeenth century common lawyers fearful of the ambitions of the Stuart monarchy challenged the idea that law derived from the commands of a king, whose authority came either from divine right or conquest. For them, the common law was a "fundamental law" derived from an ancient constitution, limiting the power of the crown and guaranteeing the freedoms and rights of the English, most particularly to their property. In the case of Prohibitions del Roy (1607) Coke declared that the law as administered by the judges was "the golden met-wand and measure to try the causes of [the] subjects," while in the Case of Proclamations (1610) it was ruled that the king's proclamations did not have the force of law. The legal debate over the existence of an "absolute" power in the king to act according to his idea of what the public good required in emergencies continued to be debated in a legally inconclusive way in a number of causes célèbres in the early seventeenth century. But the vision of the constitution espoused by common lawyers prevailed in the later seventeenth century and was secured by the Bill of Rights in 1689.
Such was Coke's veneration of the common law that he stated in 1610 that it could even declare void a statute "against common right and reason" (Dr. Bonham's Case). Before the outbreak of the English Civil War in 1642, lawyers sometimes described Parliament as a court, implying that statutes might be seen as judgments or declarations of the common law. More usually, however, lawyers from Coke to Blackstone described Parliament's power as "transcendent and absolute" (Coke, Institutes) and not liable to judicial review. In doing so they did not expect (and did not see) an active, interventionist legislature. Legislation that was passed amended and modified the common law, rather than displacing it. Parliament was therefore seen as part of the common law's world rather than as a threat to it. Just as the common law grew from the consent of the people as manifested in custom, so statute was seen to come from current consent. It was a fundamental rule of the constitution, constantly reiterated, that the crown could neither change the law nor impose taxation without consent. It was this that made England (in Fortescue's terms) "a government not only regal but also political." As Hale put it, all legislation was a "tripartite indenture" between king, lords, and commons, rather than the mere will of the king or the people. The notion of the mixed constitution, founded on a presumed ancient original contract reconfirmed in 1689 and conferring unlimited power on the crown-in-Parliament, was generally accepted in mid-eighteenth-century England. However, when Parliament began in the 1760s to tax colonists who were not represented at Westminster, American lawyers invoked Coke's rhetoric from Bonham's case, arguing for the existence of a higher law to control the legislature. Where parliamentary sovereignty became the cornerstone of the British constitution, the American constitution of 1787 recast the old ideas of a fundamental law.
The Common Law in the Courts
In a narrower sense, the common law was the body of law administered in Westminster Hall by the twelve judges of the three superior courts of law. These were the Common Pleas, whose position as the prime court for civil suits had been secured by the Magna Carta (1215) and which continued to attract most civil litigation until the early eighteenth century; the King's Bench, which originally dealt with crown business (including criminal matters) and had jurisdiction to correct errors from other courts of record; and the Exchequer of Pleas, which originally dealt primarily with revenue matters. By the later Middle Ages, thanks to procedural changes designed to attract litigants, these courts had a largelyconcurrent jurisdiction, and the King's Bench gradually became the most popular court. The common law administered in these three courts contrasted with "equity" as administered primarily in the Court of Chancery. The Chancery was originally a court of conscience, concerned with securing justice in individual cases rather than following strict rules. There were some complaints in the sixteenth and seventeenth centuries about the certainty of the common law being undermined by the interference of the lord chancellor. It was argued that one chancellor's conscience might differ from his successor's, just as the length of their feet did. In 1614–1616 an unsuccessful attempt was made by Coke to assert the supremacy of the common law courts over the Court of Chancery. However, after the Restoration, when Heneage Finch, earl of Nottingham, was lord chancellor (1675–1682), the court began to develop a more fixed set of principles and rules, which were further developed by Philip Yorke, earl of Hardwicke (lord chancellor, 1737–1756). By the eighteenth century, the old antagonism between the systems had gone. With a distinct procedure and set of remedies, the Chancery was able to develop a jurisdiction over matters to which the common law remained blind, most notably trusts. It thereby made up for the shortcomings of the common law, but its rules and doctrines presumed the existence of the common law, which it modified in particular contexts.
While common lawyers saw their law as based on immemorial custom, they also described it in terms of reason. As Coke put it in the Institutes, "reason is the life of the Law, nay the common law itself is nothing else but reason." By this he meant not the "natural reason" of every man but the "artificial reason" of lawyers, obtained by long study and experience. Knowledge of the law was a specialized enterprise, which had to be left to lawyers, and "if all the reason that is dispersed into so many several heads were united into one, yet he could not make such a law as the Law of England is." This law was seen to be both developing and unchanging. On the one hand, its core principles were seen as timeless. On the other, its details had been, as Coke stated elsewhere, "refined and perfected by all the wisest men in former succession of ages and proved and approved by continuall experience to be good & profitable for the common wealth."
Rather than directly reflecting the customary practices of the people, most of the law applied in the courts to the end of the eighteenth century had been created and developed in the judicial forum. The common law had originated in the reign of Henry II (ruled 1154–1189) not as a set of substantive rules, but as a set of institutions and procedures to enforce rights whose substance was defined by community custom. However, with the development both of a legal profession and of the jury in the thirteenth century, new legal norms emerged by which custom was rapidly turned into law, which then developed within the courtroom. Since the jury's function was to decide questions of fact, matters of the law had to be settled by lawyers and judges. In the later Middle Ages, when the process of pleading was flexible, judges avoided making clear determinations of substantive law, preferring to get the parties in uncertain cases to reformulate their claims to reflect the common understanding of what the law was. In this era, the law was often seen in terms of the "common erudition" of the lawyers, as debated at the Inns of Court as well as in the courtroom. By the sixteenth century, however, when pleading had become more formal, judges began to be more confident about making clear statements of law. Law was now often settled, after the determination of facts by the jury, by motions debated on the bench at Westminster Hall after a trial had taken place at the assizes.
In elaborating the law, judges assumed that the common law already contained within itself the answers to any questions they might be asked. They saw their function as being to declare what the law already was, rather than to make new law. In order to maintain certainty, they were expected as far as possible to follow the reasoning of earlier cases. Since cases were seen to be evidence of the law rather than law itself, no doctrine of binding precedent emerged in this period. Nevertheless, from the sixteenth century onward, law reports were produced that clearly set out the substantive decisions, in a way not done in the medieval Year Books, and lawyers such as Edmund Plowden (1518–1585) and Coke now published reports that sought to illustrate the principles of the law. Until the mid-eighteenth century most published law reports were the unreliable results of speculating publishers, but manuscript reports circulated widely and were often quoted in court. Principles, or maxims, could thus be obtained by a process of induction from the ratio decidendi, or reason for the decision, of earlier cases. Besides applying the principles and maxims thus obtained, judges were also expected to extend the reason of one case to another by a process of analogy. However, judges did not only derive their law from precedent or analogy, for in novel cases they were free to resort to arguments drawn from natural law, public policy, or convenience.
Bibliography
Primary Sources
Blackstone, William. Commentaries on the Laws of England. 4 vols. Chicago, 1979. Originally published 1765–1759.
Coke, Edward. The First Part of the Institutes of the Laws of England, or, A Commentary upon Littleton. Edited by Francis Hargrave and Charles Butler. 15th ed. London, 1794.
——. The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of the Courts. London, 1644.
——. La huictme part des reports de sr. Edw. Coke. London, 1611.
——. Le quart part des reportes del Edward Coke. London, 1604.
Davies, John. Les reports des cases & matters en ley, resolves & adjudges en les courts del roy en Ireland. London, 1674.
Fortescue, John. De Laudibus Legum Angliae. Edited and translated by S. B. Chrimes. Holmes Beach, Fla., 1986.
Hale, Matthew. The History of the Common Law of England. Edited by Charles M. Gray. Chicago, 1971. First published 1713.
Johnson, Robert C., et al., eds. Commons Debates, 1628. 6 vols. New Haven, 1977–1983.
Secondary Sources
Baker, J. H. An Introduction to English Legal History. 4th ed. London, 2002.
Brooks, Christopher W. Lawyers, Litigation, and English Society since 1450. London and Rio Grande, Ohio, 1998.
Burgess, Glenn. The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1600–1642. Houndmills, U.K., 1992.
Lobban, Michael. The Common Law and English Jurisprudence, 1760–1850. Oxford and New York, 1991.
Oldham, James. The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century. 2 vols. Chapel Hill, N.C., 1992.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect. Cambridge, U.K., and New York, 1987.
Sommerville, J. P. Royalists and Patriots: Politics and Ideology in England, 1603–1640. London and New York, 1999.
Stoner, James R., Jr. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence, Kans., 1992.
Tubbs, J. W. The Common Law Mind: Medieval and Early Modern Conceptions. Baltimore, 2000.
—MICHAEL LOBBAN
The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.
The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.
A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.
The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French civil law combined with English criminal law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.
Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.
Early common-law procedure was governed by a complex system of pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as code pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court.
Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of stare decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.
Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.
Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.
Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.
See: adversary system.
Law developed in the course of time from the rulings of judges, as opposed to law embodied in statutes passed by legislatures (
In common law legal systems, the law is created and/or refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, common law judges have the authority and duty to "make" law by creating precedent.[1] The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an "ideal" common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
In practice, common law systems are considerably more complicated than the "ideal" system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between constitutional law, common law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems.
Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, the United States, most of Canada, and other former colonies of the British Empire.
There are three main connotations to the term common law, and several historical ones worth mentioning:
In a common law jurisdiction, several stages of research and analysis are required to determine what "the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what "the law is". Then, one applies that law to the facts.
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively).
In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, in England and Wales and in most states of the United States, the basic laws of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods[4], or the criminal law[5]), other written laws generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law (connotation 1). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" – but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch[6], so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.
In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated -- for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. For this reason, even today American law schools teach the common law of crime as practised in England in 1789, because the backdrop of centuries-old English common law is necessary to interpret and fully understand the literal words of the modern criminal statute.
With the transition from British law, which had common law crimes, to the new legal system under the U.S. Constitution, which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson,[7] which decided that common law crimes were prohibited, and that there must always be a (constitutional) statute defining the offense and the penalty for it.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly – that is, limited to their precise terms – because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism).
Where a tort is rooted in common law, then all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
In many subject matter areas, legal treatises compile common law decisions, and state overarching principles that (in the author's opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
This is one of the "cultural" differences between common law and civil law jurisdictions (connotation 2): in civil law jurisdictions, the writings of law professors are given significant weight by courts. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is.[8] When common law courts rely on scholarly work, it is almost always only for factual findings or for policy justification, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.
This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law.[9] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. In contrast, in non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.
Common law originally developed under the inquisitorial system in England during the 12th and 13th centuries,[10] as the collective judicial decisions that were based in tradition, custom and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.
Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, which is where a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, "common law."
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is doubtful, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop, who was immediately venerated as a martyr and later as a saint, gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).
In spite of this setback, judge-made common law endured for centuries as the primary source of criminal and civil laws throughout the realm. Later, after Parliament acquired legislative powers, statutory law began to limit the scope of the common law in some areas. Even today, however, common law retains its status as an essential element of the British legal system.
Following the American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt "reception statutes" that gave legal effect to the existing body of English Common Law.[11] Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution.
For example, the New York Constitution of 1777[12] provides that:
| “ | [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. | ” |
Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.”[13] Thus, even when reception was effected by a constitution[14], the common law was still subject to alteration by a legislature's statute.
The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed "judicial proceedings according to the course of the common law." Nathan Dane, the primary author of the Northwest Ordinance, viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law.”[15] In effect, the provision operated as a reception statute, giving legal authority to the established common law in the vast territories where no states had yet been established.
Over time, as new states were formed from federal territories, these territorial reception statutes became obsolete and were re-enacted as state laws. For example, a reception statute enacted by legislation in the state of Washington requires that "[t]he common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."[16] In this way, the common law was eventually incorporated into the legal systems of every state except Louisiana (which inherited its civil law system from France).
A similar statute exists in Article 8 of the Basic Law of Hong Kong.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.
In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.[17]
Delaware and New Jersey still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court.
