Difference between revisions of "Common law" - New World Encyclopedia

From New World Encyclopedia
(fixed)
Line 5: Line 5:
  
 
The '''common law''' forms a major part of the law of those countries of the world with a history as [[British Empire|British]] territories or [[colony|colonies]].  It is notable for its inclusion of extensive [[non-statutory law]] reflecting [[precedent]] derived from centuries of [[judgment]]s by working [[jurist]]s.  As a genre of law which is based on custom, tradition, and/or precedent, common law is a historical background of the means towards a harmony and cooperation between human beings who have learned to live according to laws or norms.
 
The '''common law''' forms a major part of the law of those countries of the world with a history as [[British Empire|British]] territories or [[colony|colonies]].  It is notable for its inclusion of extensive [[non-statutory law]] reflecting [[precedent]] derived from centuries of [[judgment]]s by working [[jurist]]s.  As a genre of law which is based on custom, tradition, and/or precedent, common law is a historical background of the means towards a harmony and cooperation between human beings who have learned to live according to laws or norms.
 
+
==Connotations==
 
There are three important connotations to the term.
 
There are three important connotations to the term.
 
===Connotation 1===
 
===Connotation 1===
Line 14: Line 14:
  
 
===Connotation 3===
 
===Connotation 3===
*'''Law as opposed to equity''': The third differentiates "common law" (or just "law") from "[[equity]]". Before [[1873]], England had two parallel court systems, courts of "law" that could only award money damages and recognised only the legal owner of property, and courts of "equity" that recognised [[trusts]] of property and could issue injunctions (orders to do or stop doing something).  Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorising and prioritising rights to property, (b) determining whether [[Seventh Amendment to the United States Constitution|the Seventh Amendment's]] guarantee of a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue can only be decided by a judge (issues of equity), and (c) in the principles that apply to the grant of [[equitable remedies]] by the courts.
+
*'''Law as opposed to equity''': The third differentiates "common law" (or just "law") from "[[equity]]."  Before 1873, England had two parallel court systems, courts of "law" that could only award money damages and recognised only the legal owner of property, and courts of "equity" that recognised [[trusts]] of property and could issue injunctions (orders to do or stop doing something).  Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorising and prioritising rights to property, (b) determining whether [[Seventh Amendment to the United States Constitution|the Seventh Amendment's]] guarantee of a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue can only be decided by a judge (issues of equity), and (c) in the principles that apply to the grant of [[equitable remedies]] by the courts.
 
   
 
   
 
==Common law in the world==
 
==Common law in the world==
Line 24: Line 24:
  
 
===11th century common law===
 
===11th century 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, [[court]]s 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|defendant's]] wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
+
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, [[court]]s 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|defendant's]] wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
  
 
===12th century common law===
 
===12th century common law===
In [[1154]], [[Henry II of England|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 of 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 (law)|evidence]], a distinguishing factor from today's civil and criminal court systems.
+
In 1154, [[Henry II of England|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 of 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 (law)|evidence]], a distinguishing factor from today's civil and criminal court systems.
  
 
===Stare decisis===
 
===Stare decisis===
Line 43: Line 43:
  
 
===19th century===
 
===19th century===
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 England, courts of law and [[equity]] were combined by the [[Judicature Acts]] of 1873 and 1875, with equity being supreme in case of conflict.
  
 
===20th century===
 
===20th century===
Line 52: Line 52:
 
== Common law legal systems ==
 
== Common law legal systems ==
  
The common law constitutes the basis of the legal systems of: [[England and Wales]], [[Northern Ireland]], the [[Republic of Ireland]], federal law in the [[United States]] and the states' laws (except [[Louisiana]]), federal law in [[Canada]] and the provinces' laws (except [[Quebec]] [[Civil law (legal system)|civil law]]), [[Australia]] (both federal and individual states), [[New Zealand]], [[South Africa]], [[India]], [[Israel]], [[Sri Lanka]], [[Malaysia]], [[Brunei]], [[Pakistan]], [[Singapore]], [[Malta]], [[Hong Kong]], and many other generally English-speaking countries or [[Commonwealth of Nations|Commonwealth]] countries.  Essentially, every country which has been colonised at some time by [[United Kingdom|Britain]] uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and [[South Africa]] (which follows [[Roman Dutch law]]), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of [[English law]] and the local [[Hindu law]].
+
The common law constitutes the basis of the legal systems of: [[England and Wales]], [[Northern Ireland]], the [[Republic of Ireland]], federal law in the [[United States]] and the states' laws (except [[Louisiana]]), federal law in [[Canada]] and the provinces' laws (except [[Quebec]] [[Civil law (legal system)|civil law]]), [[Australia]] (both federal and individual states), [[New Zealand]], [[South Africa]], [[India]], [[Israel]], [[Sri Lanka]], [[Malaysia]], [[Brunei]], [[Pakistan]], [[Singapore]], [[Malta]], [[Hong Kong]], and many other generally English-speaking countries or [[Commonwealth of Nations|Commonwealth]] countries.  Essentially, every country which has been colonised at some time by [[United Kingdom|Britain]] uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows [[Roman Dutch law]]), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of [[English law]] and the local [[Hindu law]].
  
 
===Alternative to the common law or civil law===
 
===Alternative to the common law or civil law===
Line 59: Line 59:
 
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of [[jurisprudence]] (almost like [[case law]] but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the [[Uniform Commercial Code]] in the early 1960's) and procedure (the [[Federal Rules of Civil Procedure]] in the 1930's and the [[Federal Rules of Evidence]] in the 1970's)).
 
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of [[jurisprudence]] (almost like [[case law]] but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the [[Uniform Commercial Code]] in the early 1960's) and procedure (the [[Federal Rules of Civil Procedure]] in the 1930's and the [[Federal Rules of Evidence]] in the 1970's)).
  
[[Scotland]] is often said to use the civil law system but in fact it has [[Scots law|a unique system]] that combines elements of an uncodified civil law dating back to the [[Corpus Juris Civilis]]  with an element of common law long predating the [[Act of Union (1707)|Treaty of Union]] with England in [[1707]]. Scots common law differs in that the use of ''precedents'' is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a ''precedent'' and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable [[pluralistic legal system]]s operate in [[Quebec]], [[Louisiana]] and [[South Africa]]. These systems are referred to as [[mixed legal system]]s.
+
[[Scotland]] is often said to use the civil law system but in fact it has [[Scots law|a unique system]] that combines elements of an uncodified civil law dating back to the [[Corpus Juris Civilis]]  with an element of common law long predating the [[Act of Union (1707)|Treaty of Union]] with England in 1707. Scots common law differs in that the use of ''precedents'' is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a ''precedent'' and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable [[pluralistic legal system]]s operate in [[Quebec]], [[Louisiana]] and [[South Africa]]. These systems are referred to as [[mixed legal system]]s.
  
 
===Common law codification===
 
===Common law codification===
The state of California has a system based on common law, but it has [[codification|codified]] the law in the manner of the [[civil law (legal system)|civil law]] jurisdictions.  The reason for the enactment of the codes in California in the [[nineteenth century]] was to replace a pre-existing system based on [[Spain|Spanish]] civil law with a system based on common law, similar to that in most other states.  California and a number of other [[Western United States|Western states]], however, have retained the concept of [[community property]] derived from civil law.  The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law.  (Most notably, in the case ''[[Li v. Yellow Cab Co.]]'', 13 Cal.3d 804 ([[1975]]), the [[California Supreme Court]] adopted the principle of [[comparative negligence]] in the face of a [[California Civil Code]] provision codifying the traditional common-law doctrine of [[contributory negligence]].)
+
The state of California has a system based on common law, but it has [[codification|codified]] the law in the manner of the [[civil law (legal system)|civil law]] jurisdictions.  The reason for the enactment of the codes in California in the [[nineteenth century]] was to replace a pre-existing system based on [[Spain|Spanish]] civil law with a system based on common law, similar to that in most other states.  California and a number of other [[Western United States|Western states]], however, have retained the concept of [[community property]] derived from civil law.  The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law.  (Most notably, in the case ''[[Li v. Yellow Cab Co.]]'', 13 Cal.3d 804 (1975), the [[California Supreme Court]] adopted the principle of [[comparative negligence]] in the face of a [[California Civil Code]] provision codifying the traditional common-law doctrine of [[contributory negligence]].)
  
The state of New York, which also has a civil law history from its [[Dutch colonization of the Americas|Dutch colonial]] days, also began a [[codification]] of its laws in the 19th century. The only part of this codification process that was considered complete is known as the [[Field Code]] applying to civil procedure.  The original colony of [[New Netherlands]] was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was [[Second Anglo-Dutch War|recaptured]] by the Dutch.  When the English finally regained control of New Netherlands — as a punishment unique in the history of the British Empire — they forced the English common law upon all the colonists, including the Dutch.  This was problematic as the [[patroon system]] of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century.  The influence of [[Roman Dutch law]] continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in [[New York]] continued on from the Dutch days.
+
The state of New York, which also has a civil law history from its [[Dutch colonization of the Americas|Dutch colonial]] days, also began a [[codification]] of its laws in the 19th century. The only part of this codification process that was considered complete is known as the [[Field Code]] applying to civil procedure.  The original colony of [[New Netherlands]] was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was [[Second Anglo-Dutch War|recaptured]] by the Dutch.  When the English finally regained control of New Netherlands—as a punishment unique in the history of the British Empire—they forced the English common law upon all the colonists, including the Dutch.  This was problematic as the [[patroon system]] of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century.  The influence of [[Roman Dutch law]] continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in [[New York]] continued on from the Dutch days.
  
 
===United States variant on the common law system===
 
===United States variant on the common law system===
Line 70: Line 70:
  
 
==Basic principles of common law ==
 
==Basic principles of common law ==
[[Statute]]s which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing [[case law]] and [[custom]]. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many U.S. states. [[Codification]] is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practised in England in [[1750]], since the colonies (and subsequently the states) deviated from the common law as practised in England only after that date.  
+
[[Statute]]s which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing [[case law]] and [[custom]]. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many U.S. states. [[Codification]] is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practised in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practised in England only after that date.  
  
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 (law)|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 (compare [[ judicial activism]]).
+
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 (law)|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 (compare [[ judicial activism]]).
  
 
Where a tort is rooted in common law, then all damages traditionally recognized historically 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.
 
Where a tort is rooted in common law, then all damages traditionally recognized historically 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.
Line 79: Line 79:
 
[[Image:WilliamBlackstone.jpg|thumb|right|William Blackstone as illustrated in his ''Commentaries on the Laws of England''.]]
 
[[Image:WilliamBlackstone.jpg|thumb|right|William Blackstone as illustrated in his ''Commentaries on the Laws of England''.]]
  
The definitive historical treatise on the common law is ''[[Commentaries on the Laws of England]]'', written by Sir [[William Blackstone]] and first published in [[1765]] - [[1769]].  Since [[1979]] a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the [[United Kingdom]] by [[Halsbury's Laws of England]] that covers both common and statutory English law.  
+
The definitive historical treatise on the common law is ''[[Commentaries on the Laws of England]]'', written by Sir [[William Blackstone]] and first published in 1765 - 1769.  Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the [[United Kingdom]] by [[Halsbury's Laws of England]] that covers both common and statutory English law.  
  
 
While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice [[Oliver Wendell Holmes Jr.]] published a short volume called ''[[The Common Law]]'' which remains a classic in the field.
 
While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice [[Oliver Wendell Holmes Jr.]] published a short volume called ''[[The Common Law]]'' which remains a classic in the field.

Revision as of 22:50, 16 September 2007

Scale of justice.png
Law Articles
Jurisprudence
Law and legal systems
Legal profession
Types of Law
Administrative law
Antitrust law
Aviation law
Blue law
Business law
Civil law
Common law
Comparative law
Conflict of laws
Constitutional law
Contract law
Criminal law
Environmental law
Family law
Intellectual property law
International criminal law
International law
Labor law
Maritime law
Military law
Obscenity law
Procedural law
Property law
Tax law
Tort law
Trust law

The common law forms a major part of the law of those countries of the world with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting precedent derived from centuries of judgments by working jurists. As a genre of law which is based on custom, tradition, and/or precedent, common law is a historical background of the means towards a harmony and cooperation between human beings who have learned to live according to laws or norms.

Connotations

There are three important connotations to the term.

Connotation 1

  • Common law as opposed to statutory law and regulatory law: The first connotation concerns the authority that promulgated a particular proposition of law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and "common law" decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law without express statutory authority, for example, most of the criminal law, contract law, and procedural law before the 20th century, and (b) decisions that discuss and decide the fine boundaries and distinctions in statutes and regulations.

Connotation 2

  • Common law as opposed to civil law: The second connotation differentiates "common law" jurisdictions (most of which descend from the English legal system) that place great weight on such common law decisions, from "civil law" or "code" jurisdictions (many of which descend from the Napoleonic code in which the weight accorded judicial precedent is much less).

Connotation 3

  • Law as opposed to equity: The third differentiates "common law" (or just "law") from "equity." Before 1873, England had two parallel court systems, courts of "law" that could only award money damages and recognised only the legal owner of property, and courts of "equity" that recognised trusts of property and could issue injunctions (orders to do or stop doing something). Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorising and prioritising rights to property, (b) determining whether the Seventh Amendment's guarantee of a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue can only be decided by a judge (issues of equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.

Common law in the world

Many important areas of law are governed primarily by common law. For example, in England and Wales and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law, statutes may give only terse statements of general principle, but the fine boundaries and definitions exist only in the common law. To find out what the law is, 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 U.S. Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - but intepretation (that is, determining the fine boundaries) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the text can only be determined by consulting the common law.

History of the common law

Social impact of the common law

Common law originally developed under the inquisitorial system in England from 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 practised in common law courts is known as the adversarial system; this is also a development of the common law.

11th century 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.

12th century common law

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 of 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.

Stare decisis

Henry II developed the practice of sending judges from his own central court to hear the various diputes 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, that is, 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'.

Court system over canonical system

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. Things were resolved eventually, at least for a time, in Henry's favour when four of his knights, hoping to curry favour with him, murdered Becket in Canterbury Cathedral. For its part, the Church soon canonized Becket as a saint.

Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws.

What makes the common law so fascinating, compared to Parliamentary law (aka statute aka legislation), is that while parliamentary laws are written in a definitive, distinct, formal and accessible document, known as an Act of Parliament, common laws in contrast are not strictly written definitively anywhere. Thus, to identify a rule of the common law one must review the various relevant decisions of judges and interpret their judgements, which can often be long and ambiguous. Fortunately, there are a host of excellent legal text books written by experts which explain in clear terms what the common law is understood to be at the time.

15th century

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.

19th century

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.

20th century

In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation, including injunctive relief) survived well into the 20th century in many jurisdictions. The United States federal courts procedurally separated law and equity until they were combined by the Federal Rules of Civil Procedure in 1938 - the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, under two separate sets of procedural rules. This became problematic when a given case required both money damages and injunctive relief.

Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.

Common law legal systems

The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia (both federal and individual states), New Zealand, South Africa, India, Israel, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Malta, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.

Alternative to the common law or civil law

The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.

The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960's) and procedure (the Federal Rules of Civil Procedure in the 1930's and the Federal Rules of Evidence in the 1970's)).

Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems.

Common law codification

The state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands—as a punishment unique in the history of the British Empire—they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

United States variant on the common law system

The United States federal government (as opposed to the states) has a variant on a common law system. The courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above). Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law."). However, there are still some situations where United States federal courts may be permitted to create federal common law rules; see e.g. International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding, but that is one of the handful of federal common law actions that survives today), see also Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government).

Basic principles of common law

Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many U.S. states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practised in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practised in England only after that date.

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 (compare judicial activism).

Where a tort is rooted in common law, then all damages traditionally recognized historically 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.

Works on the common law

William Blackstone as illustrated in his Commentaries on the Laws of England.

The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.

While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law which remains a classic in the field.

In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly-persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).

Reception statutes

In the United States, following the American Revolution, one of the first legislative acts taken by the newly independent states was to adopt "reception statutes" receiving the English Common Law.[1] Some of these reception statutes were ordinary legislative acts, whereas some of them were implemented via state constitutions.

For example, the New York Constitution of 1777[2] stated (in Article 35) 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 state constitutional provision in New York expressly made the common law subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.”[3] Thus, even when a reception statute was embodied in a state constitution, the common law was still made subject to alteration by legislatures.

The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed (in Article Two) "judicial proceedings according to the course of the common law." This provision operated as a type of reception statute in the vast territories where no states had yet been established. The primary author of the Northwest Ordinance was Nathan Dane, and he 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.”[4]

As more territories of the United States were granted statehood by Congress, the new states adopted reception statutes, just as their territorial legislatures had done. Here is an example of a reception statute enacted by ordinary legislation, in the state of Washington:"The 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."[5]


Footnotes

  1. Glenn Lammi and James Chang, Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws (December 17, 2004).
  2. New York Constitution of 1777
  3. Federalist 84.
  4. Nathan Dane, 6 GENERAL A BRIDGMENT AND DIGEST OF AMERICAN LAW §182 art. 5, 230 (Cummings, Hilliard & Co. 1823).
  5. Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001).

References
ISBN links support NWE through referral fees

  • Feinman, Jay M., Unmaking law: the Conservative campaign to roll back the common law, Boston, MA: Beacon Press, 2004. ISBN 0-807-04426-1
  • Holmes, Oliver Wendell, The common law, Boston: Little, Brown, 1923. OCLC 789809
  • Milsom, S.F.C., A natural history of the common law, NY: Columbia University Press, 2003. ISBN 0-231-12994-7


External links

Credits

New World Encyclopedia writers and editors rewrote and completed the Wikipedia article in accordance with New World Encyclopedia standards. This article abides by terms of the Creative Commons CC-by-sa 3.0 License (CC-by-sa), which may be used and disseminated with proper attribution. Credit is due under the terms of this license that can reference both the New World Encyclopedia contributors and the selfless volunteer contributors of the Wikimedia Foundation. To cite this article click here for a list of acceptable citing formats.The history of earlier contributions by wikipedians is accessible to researchers here:

The history of this article since it was imported to New World Encyclopedia:

Note: Some restrictions may apply to use of individual images which are separately licensed.