Talk:Common law

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[edit] This seems incorrect

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 interpretation (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.

Roadrunner 17:30, 16 March 2007 (UTC)

Dear readers: While you can quibble about terminology a bit, I think the basic thrust of this passage is correct. The problem I have with the verbiage is that if you want to provide an example, maybe the example should relate to tort law or the other areas of law mentioned in the paragraph from which this material was moved (just to make it a bit clearer).

Essentially, all law in the United States (constitutional law, statutory law, regulatory law, treaty law, prior case law, etc.) is subject to intepretation by the courts -- by the judiciary. Interpretation of all laws is a basic judicial function. This means that the "current legal boundaries" of all laws can be determined by consulting the applicable case law. I would say that although the verbiage above is not necessarily "way off the mark," the article still works OK without that verbiage, and I don't particularly object to its removal. Yours, Famspear 18:10, 16 March 2007 (UTC)


I am the original author of this sentence (as well as almost the entire introductory section to this article, of which it is a part). After a close read, I think the sentence is exactly correct (but I'm open to a showing of error, or editing to make clearer), and serves a useful function.

Here's the thought process.

To answer Roadrunner's implicit question: The authority to interpret is part of the "judicial Power" of Article III. The delegation to the Supreme Court of the power to interpret was discussed at the Constitutional Convention, the state ratifying conventions (and perhaps the Federalist - I don't recall). In the U.S., the Supreme Court is the body, and the only body, that has final authority to pronounce the meaning of the constitutional text. (Congress has tried from time to time to usurp that power, e.g. the Religious Freedom Restoration Act in the late 1990's, and the Courts have struck down the congressional attempt.) Further, at least in the U.S., what alternative "interpreter" could you point to? Somebody has to determine what terms like "law," "respecting," "establishment," "religion," "free," and "exercise" mean - who else could it be?

But that is different from "common law." The German Constitutional Court interprets the Basic Law of Germany, but that isn't an example of "common law." Roadrunner 20:42, 20 March 2007 (UTC)

The reason I chose the First Amendment as my exemplar is because the language is familiar to everyone (including many non-U.S. readers), it's not idiosyncratic to any state, because it's an example of judicial interpretation of law that originates elsewhere (which is a key function of the courts that is commonly misunderstood), and because it's such a great example of language that is so terse that it can only acquire enforceable meaning and limits if it is given judicial construction. If it raises this kind of question, then it seems to be a useful educational tool.

Thoughts? Boundlessly 19:10, 19 March 2007 (UTC)

Dear editor Boundlessly: Interesting points. For non-lawyers (i.e., most readers, also known as "normal people"), my off-the-cuff suggestion of using a tort law example perhaps wouldn't work as well as your choice, since tort law is itself primarily judge-made law (common law). Your use of a source of law that is not judge-made -- namely constitutional law -- is a good choice. I reiterate that I agree that the basic thrust of your passage is correct. I'll now add that although I didn't object to its being removed, I also don't object to its being restored to the article. (Hey, how's that for taking a firm stand?) Seriously, I have to recognize that most readers are not experts in most subjects, and that an example, such as the one you provided, that makes a technical subject more understandable for those not versed in that subject is very possibly a good choice. Yours, Famspear 03:47, 20 March 2007 (UTC)
The problem is here is that there is confusion between the different meanings of common law in the sense of Anglo-American legal tradition and common law meaning judge-made case law. The first meaning is important because that is used by judges in common law jurisdictions outside of the United States. The body of First Amendment law by and large is US-centric and US judges rarely cite cases from outside of the United States and the body of First Amendment US law is rarely cited by judges outside of the United States. By contrast, in deciding cases in Hong Kong, judges will cite "common law" precedents from outside of Hong Kong which doesn't have a huge amount of indigenous law. All English case law before 1997 which doesn't contradict current statutory law is authoritative in Hong Kong.
The reason I'd rather not use the term "common law" to mean "case law" is that judges in civil law jurisdictions will refer to case law and a good deal of law in civil jurisdictions is case law, but it isn't "common law." Roadrunner 20:40, 20 March 2007 (UTC)
When one sees the term "common law," 80% of the time it refers to judge-made law (my "connotation 1," now reordered as "connotation 2."). That's just the way it is; we should explain that, because we can't change it. But I would appreciate help of a non-U.S. or non-lawyer to make that clear. Roadrunenr's comment suggests a way out of the dilemma - "common law" means "common law" as common-law lawyers understand it, but there are other kinds of "case law" (especially in non-common-law jurisdictions) that are not "common law." See my comments below. Boundlessly 20:38, 21 March 2007 (UTC)
What you say is true when one sees the term "common law" in the United States. When one sees the term anywhere else in the world it almost invariably means the Anglo-English legal tradition. See comments below. Roadrunner 04:08, 23 March 2007 (UTC)

[edit] Tagged NPOV

I tagged the part that says common law is better for commercial transactions. People have argued this, and to some extent I agree, but it still a POV which is not undisputed.

Roadrunner 20:46, 20 March 2007 (UTC)

The article doesn't use the term "better." It just says the common law has a "strength," one of which is the predictability it tends to lend to commercial transactions. I've had several direct experiences with this as a corporate lawyer in big New York firms, in several deals involving sale of a division between a French or German parent and a U.S. parent. The U.S. lawyers (for both buyer and seller) can almost always give their clients more precise advise and more flexible recommendations than can the French/German lawyers, because the French/German lawyers have fewer binding sources of guidance to work with. Non-lawyers tend to think that the need to look at court decisions is a burden - it isn't a burden, it's a strength, just as science based on many experiments is usually better than science based on fewer. I'm open to better phrasings. Boundlessly 20:51, 21 March 2007 (UTC)

Non-lawyers would rather read a statue, and know the law, than read hundreds of thousands of court cases at random, trying to find a precident somewhere. Not everyone has private access to an expensive network of carefully indexed cases at their fingertips; the very fact that common law is a randomly scattered bunch of ever-changing decisions with an invisible line of best fit traced somewhere across the middle is the exact problem. A firm statement of the principles of law, and the rules that bind it is better for everyone: except judges and lawyers, who only earn money when the law so complicated that their services are necessary. —The preceding unsigned comment was added by 216.254.142.195 (talk) 14:20, 9 April 2007 (UTC).
It's still POV. Thanks to the Delaware Court of Chancery, the US has a very developed and predictable system of corporate law, but whether that system is due to common law traditions is debatable (and to be really nit-picky the Court of Chancery is an equity court not a common law one). After all the French/German lawyers can probably give better advice than a Pakistani, Indian, Nigerian, or Fijian lawyer. One point is that the Continental system of corporations make takeovers a much less common occurence, and whether or not this is attributable to common law is again a debatable point. The second issue is that in common law jurisdictions the need for having lawyers give authoritative readings is much higher since the cost of going to court is much larger. Civil law jurisdictions trade precision for speed.
Just as an concrete example of how judge-made law can bite you. Section 404 of Sarbanes-Oxley is causing a lot of uncertainty because the case law that determines what it means hasn't been written yet, and no one wants to be a test case. In the case of the Securities Act of 1933 and the Securities Exchange Act of 1934, it took decades for the courts to develop detail case law, whereas in a civil law jurisdiction, the legislature would have likely given more guidance in the form of detailed comprehensive laws that leave less room for an unexpected interpretation by the courts.
I can look at my books and try to find references to this argument and try to present both sides.
Roadrunner 04:31, 23 March 2007 (UTC)

Roadrunner 04:31, 23 March 2007 (UTC)

[edit] Contradiction

There is a contradiction that needs to be explained. The first paragraph talks about how the federal courts use common law to interpret the first amendment, but then you have paragraphs that say that there is no federal common law. These two paragraphs are both true, but the contradiction needs to be explained to the layman.

Roadrunner 21:01, 20 March 2007 (UTC)

Dear editor Roadrunner: Ahh, harking back to law school days! I haven't read the whole article, but are you talking only about the following language?

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 [ . . . ]

If this is the language that's bothering you, then I agree that it might be a little confusing. You have to read the statement carefully: "There is no federal general common law." Now, read it again: "There is no federal general common law" (bolding added). The key word is "general." The statement is not that "there is no federal common law." One of the key points I remember from law school is that Erie does not say that there is no federal common law. One little word makes all the difference.

If one word makes all of the difference, then the article needs to be rewritten, because it is going to be extremely confusing to layman. Roadrunner 04:05, 23 March 2007 (UTC)

However, maybe the article should be expanded to explain that key word "general" in the context of Erie. And I guess I should read the rest of the article to see if there are other passages you may be talking about. And this article is not really my area of greatest strength. Perhaps some other editors who work this article regularly can explain Erie better than I could. Any comments, anyone? Yours, Famspear 21:46, 20 March 2007 (UTC)

What I meant to to get at is a distinction that is easy to see in most contexts. Federal courts can interpret law made by other bodies - constitution, statute, rule - but they can't make up new laws out of whole cloth that is not based in law created by some other body. The counterexample is shown in Erie v Tomkins: before 1938, federal courts had the power to make up federal common law - for example, the risks that are borne by a trespasser to hazards encountered on the trespassed land, and which reisk are the landowner's duty to ameliorate in the expectation that there will be some trespassers. Thus, if you went into Pennsylvania state court, you would be subject to one set of laws, but if you brought the identical case in federal court across the street in Pennsylvania, you'd be subject to different law. Erie did away with that power. But that power remains open to state courts, and is exercised in contracts, torts, etc. etc. In many (most?) cases in these areas of law, there are no underlying statutes to be interpreted. Famspear and/or Roadrunner, would you care to take a crack at drafting this? This distinction is clear to lawyers, but maybe needs to be made clearer to others.

I'd recommend reversing connotations back to the original way I had them - the connotation of "common law" as judge-made law (or rather, judicial interpretation of law made by others) is far and away the dominant use of the term (except among professors of comparative law and legal historians). Boundlessly 20:31, 21 March 2007 (UTC)

I'd argue that this makes the article extremely US-centric. When most American lawyers talk about "common law" they talk about judge-made case law because the distinction between English and Roman law traditions is not going to come up in a US court case. However, when people outside the US talk about "common law" they almost invariably mean the common law legal tradition. This is even the case in common law jurisdictions like Hong Kong, where the term "common law" includes English statutory law which remains in effect post-1997. When a lawyer in Pakistan or Hong Kong talks about "common law" they are likely to include statutory things like the Federal Rules of Civil Procedure.
When a French, Chinese, or German lawyer talks about "common law", they aren't talking about "case law" which also exists in France, China, and Germany, but rather about the Anglo-American legal tradition. This is even likely to be true in England, where European integration is a big thing a lawyer that talks about "common law" is likely to be using it to contrast it to "continental law".
Since Wikipedia is supposed to write articles from a global perspective, I'd argue that this makes putting definition one as the first one, since that is the meaning of which people will use pretty much everywhere accept for the United States.
I'll leave the order alone for now, and wait for more comments.
Roadrunner 04:05, 23 March 2007 (UTC)

"The certainty and desirability of common law is the reason you see so many contracts having no contacts with New York or London but that nonetheless opt for the certainty and sophistication of New York or U.K. law - I've NEVER seen a deal choose a civil law choice of law, and I've done several deals involving French and German parties. It's the reason you see all the big international deals run through New York and London, and the offshore offices of U.S. and U.K. law firms, and almost never French or German law and law firms. It's the reason you see offices of U.S. and U.K. firms all over the world, but almost no offices of French, German, Italian or Japanese firms in the U.S."

"it's the reason"? It is a reason but there are other reasons: Anglo-centrism and the willingness of other countries other than the US and UK to conduct business in a language other than their own. Along with the prevalence of the English language and its concomitant use as a lingua franca. The establishment of London particularly as a financial centre due to influxes of booty from imperial plunder. Then there's the mafia in the US and its financial influence. They buy lawyers who deal in common law. Like the other big corporations, they can stall punitive legal action by keeping matters in the courts ad inifinitum, while their legal lackeys debate the minutiae of a judgement on a seemingly (and probably) unrelated matter from 1703. The obstacles devised in the US and the UK to the operation of foreign firms without them first making various "concessions".

I suspect that were it not for General Wolfe and the Louisiana purchase, the most common system of law might not be the common law (pun intended).

194.46.245.146 11:21, 10 June 2007 (UTC)

[edit] This text needs rewriting.

"This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S. 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. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, perhaps close to the line, is almost certainly legal."

Under common law, there is no formal statement of what the law is. That means that each judge applies his or her own personal judgement about which elements of past cases apply to the given case, and then subjectively weigh the degree to which each of those elements will influence his or her final decision, using whichever legal principles he or she feels are bear most strong upon the case at hand.

A civil code where the fine details of the law are formally stated is fundamentally more predictable than one where the fine details are infered indirectly by some third party.

"Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their First Amendment rights apply."

Most countries don't have a "First Amendment", let alone "First Amendment" rights. Rights concerning what can and cannot be freely said or done vary widely from country to country, even within former Commonwealth countries.

Sometimes, lawyers advise their clients to consider settling out of court rather than risk losing due to a bad judgement. I know of one case where a sitting judge once said: "sometimes you can be completely in the right, and should still settle out of court". If the outcome of common law were as simple and certain as the author claims, this wouldn't be the case.

"In contrast, in non-common-law countries, such predictions are more difficult, and thus parties must often leave a bigger "safety margin" of unexploited opportunities."

I feel this claim has not been substantiated whatsoever. —The preceding unsigned comment was added by 216.254.142.195 (talk) 19:33, 29 March 2007 (UTC).

Regarding this statement: "This reliance on judicial opinion is a weakness of common law systems" -- I would argue that the use of the term "weakness" here is indeed "pejorative." However, the language is arguably objectionable not for that reason, but for the reason that the language is non-neutral POV -- just as saying that reliance on judicial opinion is a "strength" of common law systems (see above) is also non-neutral.
We also have a separate Verifiability problem with this language.
Wikipedia could say, however, that "such and such a legal scholar has stated in article X published in Law Review Y on Date Z that reliance on judicial opinion is a weakness of common law systems," etc., etc. That would solve both the POV problem and the Verifiability problem.
I don't think the entire paragraph should be deleted. However, the mere elaboration in the paragraph does not cure the non-neutral POV. Any thoughts anyone? Famspear 17:45, 2 May 2007 (UTC)
Follow-up. Notice that the language was recently changed from "strength" to "weakness" by an anonymous user here: [1] Notice the other POV changes that the user made. Famspear 17:51, 2 May 2007 (UTC)

Notice also this statement: "This reliance on judicial opinion is a weakness of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S." By changing the word "strength" to "weakness" the anonymous editor corrupted the impact of the sentence. If reliance on judicial opinion is a significant contributor to robust commercial systems, why is that a "weakness"? Is a robust commercial system supposed to be bad? The paragraph needs some work. Famspear 17:55, 2 May 2007 (UTC)

Robust commerercial systems are not the purpose of law; universal justice for all parties concerned is. I reverse the subjective opinions in the entire text to point of the hypocrisy within it; just because something makes money for the wealthy elite does *NOT* make it fundamentally just. The fact that the original tied the two concepts together was proof that it was POV, and flawed.

Here is the language, with my commentary:

This reliance on judicial opinion is [according to whom???] a weakness [should be "strength"? but still needs sourcing and modification to neutralize POV] of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S. Because there is no statute law [what? there is no statute law in common law systems? Uh, what about the US and the UK, which have plenty of statutes]

NO, don't change the definition of the term in mid-sentence. Common law systems are, by definition, that portion of the system which is *NON* codified, and relies on historical opinion and past rulings (the "common law" of the people), aka the laws of the judiciary, as opposed to legally enacted statutes passed by the sovereign or the people.

to give precise guidance on almost any given issue, parties (especially commercial parties) [commercial parties don't have statutes they can look to? what about the UCC in the United States? No, and again, by definition, that which is statue is *NOT* common law. Sheesh! ] cannot reasonably predict whether a proposed course of action is likely to be lawful or unlawful. This inability to predict the boundries [boundaries] of the law gives wealthy companies more freedom to skirt the boundaries of the law [blatant POV, and unsourced as well

as was the original, you know... that was the very point I was making... you can't just spew econo-political rhetoric in an article about LAW, and expect to be treated seriously. Economics doesn't apply: the law is the LAW, not how you can exploit it to make cash.

], and more power force settlements ["more power force settlement"??? not sure what the writer was trying to say here] from parties less able to afford legal counsel. For example, many commercial contracts are less economically efficient, and thus may create greater wealth through the adoption of risk, because the parties do not know ahead of time whether the proposed arrangement, perhaps close to the line, is legal or not [really? who says so?

I do. Every citizen I've ever spoken to was formally advised that going to court entailed significant risks, even with an "open and shut case". I live in a common law country. If the judges had to act according to the statues of the matter, and thus had less sweeping latitude in these matters, this wouldn't be the case.

The supreme court has refused to hear cases on the basis that they were not yet "ripe"; that is, the underlying series of precedents that support the law weren't yet established. If the Supreme Court of the nation can't tell you what the laws are, then the common law cannot be said to be certain.

This is completely unsource commentary] Newspapers, taxpayer-funded entities with some religious affiliation, and political parties cannot obtain clear guidance on the boundaries within which their rights apply [really? who says so?

Who says they *CAN*? That was my point, when I inverted your text.

]

In contrast, in non-common-law countries, such predictions are more easier [says whom?], and thus parties must adopt less risk, which leads to less economic gain for any single party attempting to exploit a unique market niche by exploiting legal risk.

I'm not sure this material can be salvaged. In any case, it should be moved to a "Critique" section, it should be sourced, and the POV should be ironed out in my opinion. Yours, Famspear 18:04, 2 May 2007 (UTC)

Yup. That's the point I was trying to make. Stop putting in partisan comments, (pro Common law or anti), stop claiming that common law consists of statue law, when by the very origin and definition of the term it does not (it's the most fundamental contrast *IN* law; the law of the goverment, and the law of the judicary, and I'm surprised that anyone claiming to be a lawyer can't figure that out)...

The original version of this language appears to have been introduced here: [2]. Yours, Famspear 18:09, 2 May 2007 (UTC)

OK, I see that this verbiage was probably meant to read: "gives wealthy companies more freedom to skirt the boundaries of the law, and more power [to] force settlements from parties less able to afford legal counsel." Guess I'm a little tired. Famspear 18:17, 2 May 2007 (UTC)

I'm reremoving this paragraph. It originally said strength, now it says weakness. Either way it conveys no facts. Brock 06:04, 6 May 2007 (UTC)

Wanted to add that it shouldn't be in a "Critique" section either. The section is just Boundlessly's opinion. If you were to source it, it would be original research. A critique section (which I don't think this article needs) should be a summary of extant criticisms of whatever, not an original critical essay. Brock 06:22, 6 May 2007 (UTC)

I've been away for a couple months (international commercial transaction, among other things). "Common law" predictability being a "strength" isn't just my personal opinion, it's an opinion shared widely by international commercial lawyers, and you can see the footprints of it anywhere you look.

Common law is law that is not, by the very definition of the term, codified: it's the collective weight of opinions of the whims of judiciary. Once the ruling body codifies and standardizes those laws, you have civil (aka codified statue) law again.

The certainty and desirability of common law is the reason you see so many contracts having no contacts with New York or London but that nonetheless opt for the certainty and sophistication of New York or U.K. law - I've NEVER seen a deal choose a civil law choice of law, and I've done several deals involving French and German parties. It's the reason you see all the big international deals run through New York and London, and the offshore offices of U.S. and U.K. law firms, and almost never French or German law and law firms. It's the reason you see offices of U.S. and U.K. firms all over the world, but almost no offices of French, German, Italian or Japanese firms in the U.S.

  • shrug* That doesn't tell me anything about the ability of the average man on the street to interpret the law without access to a law library, now does it? You can't

make a generalization about the law that only applies to the 1% of the populace who are able to afford the services of a $600/hr lawyer.

And as for your economic theory, it's not only POV, it's also confounded by thousands of other variables. Perhaps lack of predictability in the law is an asset for those wealthy enough to better manage the underlying risk? Perhaps the taxation in the US and UK laws are different than elsewhere? Perhaps the other labour laws play a role? Perhaps import duties and other factors play a role?

Your personal conceit does not prove the facts you wish it to.

The paragraph does convey a very important concept, that "common law" is the way the commercial world works. It also explains why it works that way. No, it's not provable as an "issue of fact." But this is an encyclopedia, not a motion for summary judgment, so I'm not sure that "no facts" is either accurate or relevant.

It doesn't explain anything; it's at best a personal economic theory, and at worse blatant propaganda. If you can't prove your theory as an "issue" of fact, leave it out.

I'll find a law review article or something like that to cite, and we can rely on that author's opinion instead of a nameless consensus opinion, the evidence you can see all around you, and the commercial reality of how deals get done and who does them. Does that make everyone happy? Boundlessly 22:18, 21 May 2007 (UTC)

Why not find an idependent economist's assessment, instead? Lawyers have a strong financial interest in maintaining legal systems that are as complex and difficult to understand as possible. Claiming that codified civil law is "worse" than a scatter series of ad-hoc judicial opinions is a counter-intutitive claim, and should be supported by someone other than those parties who benefit directly from its propogation.

"Most countries don't have a "First Amendment", let alone "First Amendment" rights. Rights concerning what can and cannot be freely said or done vary widely from country to country, even within former Commonwealth countries."

Common law would appear to allow fluctuation of rights within the originating countries too. The use of internal exile, detention without trial, non-jury trials, state murder, monitoring of citizens without their consent and other abitrary impositions have all been practised in the UK. These were long before 9/11. Common law didn't stump up the goods for a lot of people in Northern Ireland who hadn't committed any crimes. Well, that is, things that wouldn't be considered a crime in countries. For example, practising one particular denomination of a religion, verbal criticism of the state, electing to converse in another European language etc.

194.46.245.146 11:36, 10 June 2007 (UTC)

[edit] confused.com

  • The common law forms a major part of the legal systems of those countries of the world with a history as territories or colonies of the British Empire (with the exception of Malta, Scotland and Quebec).

I don't understand the meaning of this sentence. Are we saying that Malta, Scotland and Quebec have common law but were not colonies or are we saying that they were colonies but do not use common law. I don't understand. Any enlightenment. I don't know about the other two, but Scotland does use elements of the common law system so i'm no clearer. --Brideshead 20:42, 16 May 2007 (UTC)

[edit] Misplaced paragraph contrasting common law and legislation

I cut this paragraph out of the section on "History"

What makes the common law so fascinating, compared to Parliamentary law (aka statute aka legislation), is that whilst Parliamentary laws are written in definitive form, in a distinct, formal and accessible document, known as an Act of Parliament; common laws in contrast are not strictly written definitively anywhere. So, to identify a rule of the common law one must review the various relevant decisions of judges and interpret their judgments, which can often be long winded and ambiguous. Fortunately, there is a host of excellent legal text books written by experts which explain in (usually) clear terms what the common law is understood to be at the time. The ambiguity of judicial decisions means that the common law is often subject to reinterpretation and is thus alive; it can be modified significantly without legislative intervention to adapt to new trends in political, legal, and social philosophy. Some changes, of course, do require (or would at least be better attained through) legislative action, but common-law jurisdictions tend not to require the action to be as rapid, as thorough, or as drastic as in other jurisdictions.

I have no great objection to a paragraph along these lines, to contrast common law with statute, however (a) it doesn't belong in "history," (b) parts are redundant, and (c) it isn't quite accurate - for example, in the U.S., decisions of the Supreme Court are "strictly written," and no other law that conflicits is the "law." Statutes are not definitive, because the courts can invalidate them, and statutes are often not defintive because they delegate much of the precise line-drawing to courts or executive agencies.

Let's work on the following paragraph until we like it. Then I think it belongs in the section "Basics of the Common Law." Then, that section should be retitled "Operation of Common Law Principles" or something like that, and moved up to the top of the article, just above "History"

In a common law jurisdiction, to determine what "the law is" in a given situation, both judges and attorneys seeking to advise clients follow the same process. 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 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 maleable 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, in the manner of a alive 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 many cases, legal treatises compile common law decisions and state overarching principles that, in the author's opinion, explain the results of the cases. However, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.

Boundlessly 21:47, 16 June 2007 (UTC), Boundlessly 21:17, 17 June 2007 (UTC)

I moved this paragraph back into the main article, under "basic principles." There is now some significant redundancy that needs to be squeezed back out, but also good contributions. Boundlessly 21:32, 8 July 2007 (UTC)

[edit] Footnotes needed

Many sections of this article do not include any footnotes. So, I've inserted tags that say references are needed. Preferably, the references will be available via internet, so they can be easily verified. If someone wants to get started on this, I recommend using Google book search. Also, please try to keep the footnotes in a uniform format.Ferrylodge 21:49, 8 July 2007 (UTC)

[edit] Introduction

I think the introduction should be brief, and to be brief it has to be focused on the single most important characteristic of the common law - that is, how it is used every day to decide cases and make practical decisions, how the common law process affects outcomes and practical life out of court.

History, local variations, etc. are certainly interesting, but they're clearly of secondary importance.

History, for example, is a statement of what common law was, not what it is. References to 12th century practice do not belong in the introduction.

Comparisons to non-common law systems are statements of what the common law is not, not of what it is. Interesting, certainly, but not helpful to keeping an introduction brief and practically helpful.

Can we keep the early parts of the article focused on points that are of key practical importance to the practice of law and defintion of the term, and keep subsidiary stuff like history, local variants, etc. confined to the separate sections directed to them? Boundlessly 04:02, 27 July 2007 (UTC), revised August 4

[edit] Introduction, Mark II

I would like to apologize to Boundlessly for peremptorily undoing his edit without explaining why. I hope we can reach some kind of consensus regarding the introduction, and I will not make any further changes until we do. Below, I have detailed what I see as some of the “problem passages” in the introduction. Please note that they are mostly stylistic/aesthetic – some may see this kind of thing as nitpicking, but this is, after all, the introduction of a major article, where style and clarity are particularly important.

1. “Common law is a type of legal system in which the law is created and/or refined by courts on a case-by-case basis.” I am mostly happy with this, and if it weren’t the first sentence, I wouldn’t mention this problem at all, but I just don’t like the use of “in which” – it sounds awkward to me because I’m not sure that “in” is the right preposition to use. I can’t think of a way to correct this problem offhand, and I’m not even certain that it is a problem. If anyone agrees with me and can think of a solution, I would be interested to hear it. If no one agrees with me, please ignore. Also, I think "and/or" should be changed to "and."

2. “The body of precedent is called "common law" and it binds future decisions.” I think this sentence might lead to confusion because this paragraph has not yet been placed in the context of a “decision” (and because the casual reader might not know what exactly it means for a decision to be “bound”). I believe that the sentence “the body of precedent is called common law” should go at the end, after it has been explained what form the “body of precedent” takes. The fact that it binds future decisions is entirely separate, and should be covered in the explanation of the decision-making process.

3. “In future cases, when parties disagree on what the law is, an "ideal" common law court looks to past precedential decisions of relevant courts.” I do not like this sentence; since we have not mentioned a present case, it does not make sense to refer to “future cases.” Also, I wrote the original explanation in terms of an “ideal” common law court precisely because I wanted to avoid clouding the issue with the fact that only some decisions are “precedential” (which is, incidentally, a formal and confusing word) and that only some courts are “relevant.” The next paragraph (that begins “In practice …”) was intended to introduce these issues after the core process had been explained. Finally, I think it is semantically confusing to refer to future cases in the present tense.

4. “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).” I wrote this sentence, so its problems are my fault, but I disliked having to relegate the first mention of stare decisis to a parenthetical. Can someone come up with a better way to do this?

5. “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.” This is an excellent sentence, but I do not think that it belongs in the introduction. The purpose of this paragraph is to alert the reader to the fact that common law is not quite as simple as the preceding paragraph would suggest. My mention of appellate courts was merely an example; it is a mistake to introduce new concepts here, such as “non-binding persuasive authority.” Also, I do not consider myself to be an expert on all systems of common law around the world, but is it possible that this sentence is guilty of the US-centrism that another editor pointed out? The introduction is intended to describe those features that are common to all common law systems, not just “most” of them. Moreover, even if this sentence does hold true of all common law systems, I think the information it provides is too specific to be included in the intro.

6. “Interactions between constitutional law, common law, statutory law and regulatory law give rise to considerable complexity.” I agree that this sentence is an improvement over my original, but there should be an “also” in there somewhere – probably before “give rise.”

7. Finally, I would like to include in the intro the fact that common law first developed in England in the 12th-13th centuries. I’m not absolutely committed to this idea, but I don’t think that the intro needs to be devoid of all historical facts, and the time and place of the invention of common law is, I think, worthy of a brief mention in the introduction. Also, this fact helps to explain why common law systems are common in former English colonies. I agree, however, that it shouldn’t be in the first sentence, where I put it originally.

I think the most serious problem with the introduction as it stands lies in the explanation of the operation of the “ideal” common law court. To a seasoned lawyer (which I am not), the concepts of precedent, binding and non-binding authority, etc. are so familiar that it might be difficult to consider them from the perspective of someone who knows nothing about common law and has time only to read this introduction. I prefer my original attempt:

“Common law is created and modified by courts, on a case-by-case basis. In resolving a legal dispute, an "ideal" common law court looks first to precedent. 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 resolve the matter itself, with reference to general legal guidelines. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis. Over time, the precedent created by past decisions forms a complex set of rules that are designed to apply to a wide variety of cases. These rules are collectively known as "common law."”

There are certainly problems with this paragraph (like the use of the word “complex” – I don’t know what I was thinking), but I think it does a better job than the current intro of approaching the subject of common law from “first principles.” I understand that this description is a simplification, but I think that’s alright, as long as it is made clear to the reader. Please let me know what you think. --Seeve 04:02, 9 August 2007 (UTC)

1-6 are fine with me - I'm less than 100% enthusiastic about the prose, but don't yet know what to do about it without excessively violating the thought process of the original author. Remember we're not writing a contract or patent claim or a tax statute - antecedents and references don't have to line up as precisely as they would in a legal document! In context, the current intro is reasonably clear on the interrelationships (being too precise can make less clear!), but better never hurts, and Seeve's observations seem on the right track. I'd like to get the first sentence to spotlight the single point that most matters to lawyers and to those who encounter the legal system - the common law reasoning process (Connotation 1). I'd like to move the current initial opening words ("legal system," connotation 2) to later in the intro, or perhaps out of the intro all together, and leave that to the larger article to develop.
My goal for the intro is that it be a brief, focused presentation of the practical effects of "common law" on English-reading lawyers and non-lawyers - what a client wants to know when the lawyer starts talking about "common law" this and "common law" that. A client who is tied up in their first law suit wants to know what the law is, and why I can't instantly tell them what the law is for their situation by just looking it up. I want this intro to tell them, without bogging the reader down in history, international comparative law, Blackstone, Restatements, etc.
One more thing I hope we can accomplish is clue in all the fifth graders who are told "The legislative branch creates the laws, the judicial branch interprets the laws, and the executive branch carries them out." I never had any idea what "interpreting" meant until law school. I'd love to have the introduction say enough to de-mystify that for kids. Boundlessly 17:57, 10 August 2007 (UTC)
I think Boundlessly and I disagree about the purpose of this article. I feel that the introduction should not necessarily be geared toward the "Help! I just got sued!" demographic. That might have sounded a bit glib, and I actually do agree that practicality is an important - perhaps even the most important - consideration. It is not the only one, however, and I think the introduction should at least briefly touch on aspects of common law that are not practical, but which are fundamental nonetheless.
Don't get me wrong: I'm not suggesting that the introduction should begin with a four-volume history of the Common Law written in Old English - when I say "briefly" I'm just talking about a couple of words. For what it's worth, I think I should mention that two weeks ago, I read the introduction to this article for the first time in order to satisfy my idle curiosity about the origins of common law - indeed, at the time, I expected the intro to be mostly about history (because after all, why else would anyone look up common law on Wikipedia?). I bring this up only to illustrate that readers of a given article often have widely disparate goals, and one of the purposes of the intro is to provide these readers with a broad understanding of the subject. Impatient readers can skip directly to the subject headings if their urgent practical needs can't wait.
By the same token, I agree that it is important to educate children about the fundamentals of the legal system, but this is not the proper forum to do so. There may be some gaps in the legal education provided to fifth-graders, but if we wrote the introduction with fifth-graders in mind, it would become useless to almost everyone else (especially clients, who would not be amused if they were directed to an article entitled "Fun With Common Law!" when they ask shrewd questions about the itemized charges on their legal bill).
It seems unlikely that Boundlessly and I will ever completely agree on this issue. However, I think that his position is defensible and has a great deal of merit. Also, the intro as it stands is better than most, and is probably perfectly clear to the vast majority of readers. Therefore, I will not pursue this argument further - as always, I welcome comments/responses, &c. - Seeve 01:35, 11 August 2007 (UTC)

[edit] Worldwide

Globe icon
 The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please improve this article or discuss the issue on the talk page.

From time to time, this marker gets put in the article, but no one squarely identifies a bias issue.

Is there a legitimate question here? To the degree I understand international comparative law, it seems to me that this article is unbiased and reflects a proper choice of emphasis for English speakers. Non-English speakers might prefer to emphasize different things by reordering the points, but they aren't going to be turning to an English-language article as their first source, right? So to the degree that every article has to be in one order or another, and this article is of primary interest to English speakers, the choices of ordering - and the inevitable choice of emphasis that follows - should be those of English speakers?

Though the lens of my understanding (which are those of a New York commercial lawyer with some litigation experience), there are no international biases in the content, but only Anglo-American biases in the choice of subject matter to discuss first vs. discuss second? And the emphases are those that are most relevant to English speakers?

Am I overlooking something? Does anyone see a genuine bias other than this? Boundlessly 19:29, 17 August 2007 (UTC)


I am no Wiki expert, but is the marker saying that the topic only concerns itself with a few countries and is thus not sufficiently global in scope? Of course, a global approach doesn't make sense for this topic. It needs only to address those territories in which common law applies. (I suspect the marker is automatically generated.) 135.245.72.34 16:06, 28 August 2007 (UTC)

[edit] Assessment on history section

The history section leaves out the origins of the common law from antiquity--the influences of the Roman occupation during the classical period and the paleo-Britain tribes. It also cites the Catholic Encyclopedia (POV on biblical influences on the Common Law), when it could cite Oliver Wendell Holmes, Lord Blackstone, and Bracton. There are a few online texts available at the Harvard Law website and the Avalon project over at Yale has a few other Medieval sources. I shall attempt to incorporate them. Legis Nuntius (talk) 02:15, 14 December 2007 (UTC)

[edit] Overall assessment

Per the request at WP:LAW, and in addition to the comments above:

  • This is still a B class article. It has the breadth and depth of what will be needed for FA, but it has a variety of other issues:
  • First, much of it is unsourced. This has a total of 22 items sourced (21 cites, 1 used twice) on a article this long is far too few. Large sections are unsourced, as a general rule at last one per paragraph. In fact one of the “cites” is really a comment, which is not an appropriate comment, as ironically is a word to avoid. Generally, pre WP:NPOV there should not be commentary/values. Along those same lines, there opinions expressed in some of the footnotes are unscourced as well. Who says “This is not to say that common law is better in every situation.”? It would be better to add those statements accompany the footnotes in several spots to the main article body and then source those statements.
  • The last “paragraph” of the lead is one sentence. There should not be one sentence paragraphs.
  • The citations that do exist need to be standardized, and they need to be full citations that include the retrieval date for online items used.
  • Rarely should "words" or "terms" be put inside quotation marks "unless" it is a quote, such as Fred Thompson said, "Reasonable suspicion is required." These Scare quotes are discouraged.
  • Many of the sources appear to be a primary source documents. This is great for a legal brief, but discouraged in Wikpedia as this can lead to interpretation of these sources. Secondary sources are preferred in Wikipedia. Try using a textbook, a legal encyclopedia (Corpus Juris Secundum, American Jurisprudence, or even the ALR), or law journals. This helps to avoid any WP:NOR issues.
  • This should be enough to get this through GA, for FA it would need to be copy edited by someone familiar with the WP:MOS. But great job getting the article to this stage. 04:01, 27 January 2008 (UTC)

Don't let rules of thumb become so ossified that you lose sight of context and purpose. E.g., primary source documents. This may be a useful rule of thumb in most other subject matter areas, but primary sources serve a different purpose in the law (and in religion, the only other area that has this property) than in any other. In the law, there is no underlying reality to report. A legal "fact" arises solely by it being stated by a human. All "primary sources" in the law are interpretations. Boundlessly (talk) 00:21, 12 February 2008 (UTC)

[edit] role of treatises

I deleted this section. It provided no sources, and more importantly made sweeping factual assertions that are simply not true. Sm351 (talk) 11:12, 23 February 2008 (UTC)

I agree, way to be WP:BOLD.--Doug.(talk • contribs) 17:41, 23 February 2008 (UTC)

[edit] Common law is not case law

The introduction gives a false impression of the nature of the common law.

LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts. 2. The common law is derived from two sources, the common law of England, and the practice and decision of our own courts.

(From Bouvier's dictionary of law.)

The second point from Bouvier is that common law does not originate entirely with case law. Case law is based upon the principles of common law. Source and application are different things. Claiming that common law is the same as case law ignores the source.

123.255.47.31 (talk) 19:56, 28 May 2008 (UTC)