Common law

Common law (also known as case law or precedent) is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases.^[2][3] Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch.

A "common law system" is a legal system that gives great precedential weight to common law,^[4] so that consistent principles applied to similar facts yield similar outcomes.^[5] The body of past common law binds judges that make future decisions, just as any other law does, to ensure consistent treatment. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is usually 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 (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.^[6] Thereafter, the new decision becomes precedent, and will bind future courts. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

One third of the world's population (approximately 2.3 billion people) live in common law jurisdictions or in systems mixed with civil law. Common law originated during the Middle Ages in England,^[7] and from there was propagated to the colonies of the British Empire, including India,^[8] the United States (both the federal system and 49 of its 50 states), Pakistan,^[9] Nigeria, Bangladesh, Canada (and all its provinces except Quebec), Malaysia, Ghana, Australia,^[10] Sri Lanka, Hong Kong, Singapore, Burma, Ireland, New Zealand, Jamaica, Trinidad and Tobago, Cyprus, Barbados,^[11] South Africa, Zimbabwe, Cameroon, Namibia, Liberia, Sierra Leone, Botswana, Guyana, and Fiji.

Primary connotations

The term common law has three main connotations and several historical meanings worth mentioning:

1. Common law as opposed to statutory law and regulatory law

Connotation 1 distinguishes the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law (connotation 1) or "case law", i.e., decisions issued by courts (or quasi-judicial tribunals within agencies).^[12][13] This first connotation can be further differentiated into

(a) pure common law

arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts.

(b) interstitial common law

court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law (connotation 1), sometimes called "interstitial common law," includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.^[14]

2. Common law legal systems as opposed to civil law legal systems

Connotation 2 differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.^[14] Common law (connotation 2) systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law (connotation 2) courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute. Judicial precedent is given less interpretive weight, which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably, whereas scholarly literature is given more weight than in common law systems. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.^[15]

As a rule of thumb, common law (connotation 2) systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.

The contrast between common law and civil law systems is elaborated in "Contrasts between common law and civil law systems" and "Alternatives to common law systems", below.

3. Law as opposed to equity

Connotation 3 differentiates "common law" (or just "law") from "equity".^[12][13] Before 1873, England had two parallel court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes", below). For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts.^[16][17] Additionally, even before the separate courts were merged, most courts were permitted to apply both law (connotation 3) and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" (in connotation 3) and "equity" remains important today when the case involves issues such as the following:

• categorizing and prioritizing rights to property—for example, the same article of property often has a "legal title" and an "equitable title," and these two groups of ownership rights may be held by different people.
• in the United States, determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim)^[18] or whether the issue will be decided by a judge (issues of what the law is, and all issues relating to equity).
• the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review (issues of law are reviewed de novo, that is, "as if new" from scratch by the appellate tribunal, while most issues of equity are reviewed for "abuse of discretion," that is, with great deference to the tribunal below).
• the remedies available and rules of procedure to be applied.

Courts of equity rely on common law principles of binding precedent (connotation 1).

4. Historical uses

In addition, there are several historical uses of the term that provide some background as to its meaning.

In one archaic usage, "common law" refers to the pre-Christian system of law, imported by the Saxons to England, and dating to before the Norman conquest, and before there was any consistent law to be applied.^[19][20] This definition is found or alluded to in some internet dictionaries.^[21]

"Common law" as the term is used today in common law countries contrasts with ius commune. While historically the ius commune became a secure point of reference in continental European legal systems, in England it was not a point of reference at all.^[22]

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

Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.

These definitions are archaic, their relevance having dissipated with the development of the English legal system over the centuries, but they do explain the origin of the term as used today.

Basic principles of common law

Common law adjudication

In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.^[23] Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.

In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity.

The common law evolves to meet changing social needs and improved understanding

Justice Holmes cautioned that “the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions.”^[24] Justice Cardozo noted the “common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively,” but “[i]ts method is inductive, and it draws its generalizations from particulars.”^[25]

The common law (connotation 1) is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law (connotation 1) 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.^[26] In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences).

One example of the gradual change that typifies evolution of the common law (connotation 1) is the gradual change in liability for negligence. For example, the traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, Winterbottom v. Wright,^[27] the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party.

A first exception to this rule arose in an 1852 case by New York's highest court, Thomas v. Winchester,^[28] which held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger." Thomas used this as a reason to create an exception to the "privity" rule. In, 1909, New York held in Statler v. Ray Mfg. Co.^[29] that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed."

Yet the privity rule survived. In Cadillac Motor Car Co. v. Johnson,^[30] (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and ‘dozy‘ wood, quite insufficient for its purposes." The Cadillac court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor." However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud,"

Finally, in the famous case of MacPherson v. Buick Motor Co.,^[31] in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

It may be that Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.

Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger." MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.

This illustrates two crucial principles that are often not well understood by non-lawyers. (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.

Interaction of constitutional, statutory and common law

In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, in England and Wales, in English Canada, and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). As another example, the Supreme Court of the United States in 1877,^[32] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.

In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods,^[33] or the criminal law),^[34] legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the interstitial common law (connotation 1(b)). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"—but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch,^[35] so that the current legal boundaries of the Constitutional text can only be determined by consulting interstitial common law (connotation 1(b)).^[36]

In common law jurisdictions (connotation 2), legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law (connotation 1) and custom. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document—when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated—for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. (For this reason, many modern American law schools teach the common law of crime as it stood in England in 1789, because that centuries-old English common law is a necessary foundation to interpreting modern criminal statutes.)

With the transition from English law, which had common law crimes, to the new legal system under the U.S. Constitution, which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson and Goodwin, 11 U.S. 32 (1812), which decided that federal courts had no jurisdiction to define new common law crimes, and that there must always be a (constitutional) statute defining the offense and the penalty for it.

Still, many states retain selected common law crimes. For example, in Virginia, the definition of the conduct that constitutes the crime of robbery exists only in the common law, and the robbery statute only sets the punishment.^[37] Virginia Code section 1-200 establishes the continued existence and vitality of common law principles and provides that "The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly."

By contrast to statutory codification of common law, some statutes displace common law, for example to create a new cause of action that did not exist in the common law, or to legislatively overrule the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly—that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism).

Where a tort is rooted in common law (connotation 1(a)), all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.

In the United States, the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution, Article III sections 1 and 2: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ... The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..." The first famous statement of "the judicial power" was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Later cases interpreted the "judicial power" of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution.

The interactions between decisions of different courts is discussed further in the article on precedent.

Overruling precedent—the limits of stare decisis

The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive.

Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc (that is, all active judges of the court) or by a higher court.^[38] In these courts, the older decision remains controlling when an issue comes up the third time.

Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.

In the UK, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts. From 1966 to 2009, this power lay with the House of Lords, granted by the Practice Statement of 1966.^[39]

Canada's system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.

Common law as a foundation for commercial economies

The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. As Justice Brandeis famously expressed it, “in most matters it is more important that the applicable rule of law be settled than that it be settled right.”^[40] This ability to predict gives more freedom to come close to the boundaries of the law.^[41] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply.

In contrast, in non-common-law countries, and jurisdictions with very weak respect for precedent (example, the U.S. Patent Office), fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides. In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties.

This is the reason for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States.^[42] Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law, and American contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on.) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues.^[43] On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law.^[44] Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result.

Likewise, for litigation of commercial disputes arising out of unpredictable torts (as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph), certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.^[45]

This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read (the United States tax code is an example).^[46] Nonetheless, as a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the case law of the common law courts of even a smaller jurisdiction, and that deeper, more complete body of law provides additional predictability that promotes commerce.

History

The term "common law" originally derives from the 1150s and 1160s, when Henry II of England established the secular English tribunals. The "common law" was the law that emerged as "common" throughout the realm (as distinct from the various legal codes that preceded it, such as Mercian law, the Danelaw and the law of Wessex)^[47] as the king's judges followed each other's decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries,^[48] as the collective judicial decisions that were based in tradition, custom and precedent.^[49]

The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Medieval English common law

In the late 9th century, Alfred the Great assembled the Doom book (not to be confused with the more-famous Domesday Book from 200 years later), which collected the existing laws of Kent, Wessex, and Mercia, and attempted to blend in the Mosaic code, Christian principles, and Germanic customs dating as far as the 5th century.^[50]

Before the Norman conquest in 1066, justice was administered primarily by what is today known as the county courts (the modern "counties" were referred to as "shires" in pre-Norman times), presided by the diocesan bishop and the sheriff, exercising both ecclesiastical and civil jurisdiction.^[51] Trial by jury began in these courts.^[51]

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.

Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law."

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is debatable, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law^[52]—"legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution.^[53] Justice Oliver Wendell Holmes, Jr. observed in 1917 that "judges do and must legislate."^[54] There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable.

Influences of foreign legal systems

Roman law

The term "common law" (connotation 2) is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.

By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.^[55] However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.^[56] One of the first and throughout its history one of the most significant treatises of the common law, Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian’s Institutes.^[57] The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone’s Commentaries on the Laws of England,^[58] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.^[59] As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.^[60]

Propagation of the common law to the colonies and Commonwealth by reception statutes

A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedents originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.^[61]

Other examples of reception statutes in the United States, the states of the U.S., Canada and its provinces, and Hong Kong, are discussed in the reception statute article.

Decline of Latin maxims, and adding flexibility to stare decisis

Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims. See also Thomas Jefferson's letter to Thomas Cooper.

Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, was under full attack by the late 19th century. Oliver Wendell Holmes, Jr. in his famous article, "The Path of the Law",^[62] commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present," but "the man of the future is the man of statistics and the master of economics." In an 1880 lecture at Harvard, he wrote:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

In the early 20th century, Louis Brandeis, later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in his briefs, and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.

Reliance on old maxims is now deprecated.^[63] Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like. The degree to which these external factors should influence adjudication is the subject of active debate, but it is indisputable that judges do draw on experience and learning from everyday life, from other fields, and from other jurisdictions.^[64]

1870 through 20th century, and the procedural merger of law and equity

As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law (connotation 3)) 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,^[65] even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce v. Jarndyce in Bleak House, by Charles Dickens.^[66]

In England, courts of law (connotation 3) and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.^[66]

In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law (connotation 3)" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.^[67]

Delaware, Mississippi, and Tennessee still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court.

Common law pleading and its abolition in the early 20th century

For centuries, through the 19th century, the common law recognized only specific forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into one of them: Debt, Detinue, Covenant, Special Assumpsit, General Assumpsit, Trespass, Trover, Replevin, Case (or Trespass on the Case), and Ejectment.^[68] To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific "magic words" encrusted over the centuries. Under the old common law pleading standards, a suit by a pro se ("for oneself," without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.

One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.^[69] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong. This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.

Contrasts between common law and civil law systems

Constant jurisprudence

• In common law systems, a single decided case is binding common law (connotation 1), under the principle of stare decisis. In contrast, in civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called jurisprudence constante. In civil law systems, individual decisions have only advisory, not binding effect.

General principles of law

Both common law and civil law jurisdictions have formed what they variously call "pure common law" or "general principles of law" to define what the law is in the absence of, or gap in, legislation. In common law systems, judge made law is binding to the same extent as statute or regulation. In civil law systems, case law is advisory, not binding. Civil law lawyers consult case law to obtain their best prediction of how a court will rule, but comparatively, civil law judges are less bound to follow it.

Adversarial system vs. inquisitorial system

• Common law systems tend to give more weight to separation of powers between the judicial branch (which promulgates common law (connotation 1)) and the executive branch (which promulgates regulatory law, called "administrative law" in civil law systems). In contrast, civil law systems often allow individual officials to exercise both powers.

Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, civil law systems usually use an inquisitorial system in which an examining magistrate serves two roles by developing the evidence and arguments for one side and then the other during the investigation phase.

The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore, the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.

The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change her or his evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation.

There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, and so on), even though the law to be applied is developed through common law processes.

Contrasting role of treatises and academic writings in common law and civil law systems

The role of the legal academy presents a significant "cultural" difference between common law (connotation 2) and civil law jurisdictions.

In common law jurisdictions, legal treatises compile common law decisions and state overarching principles that (in the author's opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is.^[70] When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.

In contrast, in civil law jurisdictions, courts give the writings of law professors significant weight, partly because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale had to come from somewhere else: the academy often filled that role. This balance may shift as civil law court decisions move in the direction of common law reasoning.

Common law legal systems in the present day

The common law constitutes the basis of the legal systems of: England and Wales and Northern Ireland in the UK, Ireland, federal law in the United States and the law of individual U.S. states (with the partial exception of Louisiana), federal law throughout Canada and the law of the individual provinces and territories (except Quebec), Australia (both federal and individual states), Kenya, New Zealand, South Africa, India, Myanmar, Malaysia, Bangladesh, Brunei, Pakistan, Singapore, Hong Kong, Antigua and Barbuda, Barbados, Bahamas, Belize, Dominica, Grenada, Jamaica, St Vincent and the Granadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries (except the UK's Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India uses common law except in the state of Goa which retains the Portuguese civil code. Guyana and Saint Lucia have mixed Common Law and Civil Law systems.

Roman Dutch Common law

Roman Dutch Commons law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana.

Alternatives to common law systems

The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to case law but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries.

The former Soviet Bloc and other Socialist countries used a Socialist law system.

Much of the Muslim world uses Sharia (also called Islamic law).

Scholarly works

Lord Chief Justice Edward Coke, a 17th-century English jurist and Member of Parliament, wrote several legal texts that formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the 18th century. His works are still cited by common law courts around the world.

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

While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes, Jr. published a short volume called The Common Law, which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process. Law professor John Chipman Gray's The Nature and Sources of the Law, an examination and survey of the common law, is also still commonly read in U.S. law schools.

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

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

See also

Early common law systems

• Anglo-Saxon law
• Brehon law, or Irish law
• Doom book, or Code of Alfred the Great
• Time immemorial

Examples of modern common law systems

• Common law legal systems in the present day
• English law

Common law as applied to matrimony

• Common-law marriage
• Alimony

Common vs. civil laws

• Common law offences
• Civil law

Stages of common law trials

• Arraignment
• Grand jury
• Jury trial

Slavery

• Slavery at common law

References

Further reading

• Elaine Forman Crane, Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America. Ithaca, NY: Cornell University Press, 2011.
• Friedman, Lawrence Meir (2005). A History of American Law (3rd ed.). New York: Simon and Schuster. ISBN 978-0-7432-8258-1. 
• Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 978-0-19-514236-5. 
• Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 0-19-876575-4. 
• Ibbetson, David John (2001). Common Law and Ius Commune. Selden Society. ISBN 978-0-85423-165-2. 
• Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.). Nagpur: Wadhwa & Co. ISBN 978-81-8038-264-2. 
• Morrison, Alan B. (1996). Fundamentals of American Law. New York: Oxford University Press. ISBN 978-0-19-876405-2. 
• Nagl, Dominik (2013). No Part of the Mother Country, but Distinct Dominions - Law, State Formation and Governance in England, Massachusetts and South Carolina, 1630-1769. Berlin: LIT. ISBN 978-3-643-11817-2. 
• Potter, Harry (2015). Law, Liberty and the Constitution: a Brief History of the Common Law. Woodbridge: Boydell and Brewer. ISBN 978-1-78327-011-8. 
• Salmond, John William (1907). Jurisprudence: The Theory of the Law (2nd ed.). London: Stevens and Haynes. OCLC 1384458. 

External links

Wikiquote has quotations related to: Common law

• The Common Law by Oliver Wendell Holmes, Jr.
• The Common Law by Oliver Wendell Holmes Jr. at Project Gutenberg
• The History of the Common Law of England by Matthew Hale
• The Australian Institute of Comparative Legal Systems
• The International Institute for Law and Strategic Studies (IILSS)
• New South Wales Legislation
• Historical Laws of Hong Kong Online – University of Hong Kong Libraries, Digital Initiatives
• Maxims of Common Law from Bouvier's 1856 Law Dictionary

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