Common Law Definition

The term “common law” is used in a number of different senses. In medieval English law it denoted that law which was administered by the king’s courts and which was, in principle at least, common to the whole realm. The common law, in this sense, was to be distinguished from the law administered in the local, county courts or in the feudal, barons’ courts, which tended to be specialized or particularized by region; and it was also to be distinguished from autonomous bodies of law, like the law merchant, which were peculiar to certain classes of persons.

In another sense, however, the common law is set in opposition to statute law. The common law is rendered concrete and explicit in, and derives its juridical efficacy from, decisions of courts; whereas statute law, or legislation, is an emanation of the will of the sovereign parliament or legislature. In this same specific sense, the common law is also distinguished from codified law or code law (civil law). The common law is conceived of as a body of principles originally derived from customs which are either reflected in the judgments of the highest national courts or else contained in piecemeal statutes passed ad hoc to correct or extend those same decisions. Thus it is opposed to those systems of law which have been reduced to more or less permanent written form and organization through a single comprehensive piece of legislation or codification.

Insofar as the English-speaking countries have generally been able to resist comprehensive codification of their laws, we are led into the broadest and most popular meaning of the term common law—the law of the English-speaking countries as opposed to the (generally codified) civil law of continental Europe and of those countries in Latin America, Asia, and Africa that were politically influenced by, and whose legal systems were shaped by, continental Europe.

In yet another sense, the common law is opposed to equity—that body of law, distinct from the common law, which was administered by the lord chancellor, as “keeper of the king’s conscience,’” through the chancery courts, in order to correct or ameliorate the harshness or rigidities of the common law as administered by the regular courts. Equity started as a series of principles and rules, reflecting considerations of fairness and natural justice, which were, in medieval times, of such flexibility and range as to warrant the latterday charge that equity was “as long as the chancellor’s foot.” By the early nineteenth century, however, it had jelled into a fairly rigid system of precedents and judicial authorities distinguishable from the common law mainly in that it was administered by a separate judicial hierarchy, the chancery courts. The Judicature Acts of 1873—1875, which effected a wholesale organization of the English judicial structure, abolished the special chancery courts, and equity was formally fused with the common law into a single system of precedents administered by one system of courts.

Last, the term common law is sometimes used to denote the private law, i.e., that body of law governing relationships of private citizens inter se in which the public or state interests are normally minimal or else only peripheral (for example, the law of contracts, torts, personal property), in contradistinction to constitutional law and public law generally (for example, administrative law, labor law, antitrust law) in which the public interests are normally pervasive. This distinction is ceasing to be really meaningful in modern terms, as the state increasingly intrudes into areas of law originally considered as involving personal interests only. (1)

The Common Law: Property, Torts, and Contracts

Even before legislatures met to make rules for society, disputes happened and judges decided them. In England, judges began writing down the facts of a case and the reasons for their decision. They often resorted to deciding cases on the basis of prior written decisions. In relying on those prior decisions, the judge would reason that since a current case was pretty much like a prior case, it ought to be decided the same way. This is essentially reasoning by analogy. Thus the use of precedent (a prior judicial decision that is either binding or persuasive, and as such, provides a rule useful in making a decision in the case at hand) in common-law cases came into being, and a doctrine of stare decisis (Latin, for “let the decision stand.” By keeping within the rule of a prior judicial decision, a court follows “precedent” by letting the prior decision govern the result in the case at hand) became accepted in English courts. Stare decisis means, in Latin, “let the decision stand.” (2)

Historical Perspective

Common Law is the “system of law that prevails in England and in countries colonized byEngland. The name is derived from the medieval theory that the law administeredby the king’s courts represented the common custom of the realm, as opposed tothe custom of local jurisdiction that was applied in local or manorial courts. In itsearly development common law was largely a product of three English courts—King’s Bench, Exchequer, and the Court of Common Pleas—which competedsuccessfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term “common law” is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to itsstatutory law or legislation (see statute), and also to signify that part of the legalsystem that did not develop out of equity, maritime law, or other special branchesof practice.All Canada except Quebec and all of the United States except Louisianafollow common law. U.S. state statutes usually provide that the common law,equity, and statutes in effect in England in 1603, the first year of the reign of JamesI, shall be deemed part of the law of the jurisdiction. Later decisions of Englishcourts have only persuasive authority.” (3)

Resources

Notes

1. “Legal Systems.” International Encyclopedia of the Social Sciences. 1968
2. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
3. The Columbia Encyclopedia, Fifth Edition Copyright ©1993, Columbia University

See Also

• Abuse of Process
• International Judicial Assistance in Civil Matters
• Common Law Systems
• Common Law
• International Judicial Assistance in Criminal Matters
• International Judicial Assistance in Administrative Matters
• Cross-Border Discovery
• Abroad Evidence
• Jurisprudence (Judicial Function)
• Jurisprudence
• Common Law Legal System
• Precedence (Judicial Function)
• Common Law: Property, Torts, and Contracts

Further Reading

• O. W. Holmes, The Common Law (1881; new ed., ed. by M. DeWolfe Howe,1963, repr. 1968)
• T. F. Plucknett, Concise History of the Common Law (5th ed.1956)
• Harold Potter, Historical Introduction to English Law and Its Institutions (4thed. 1958)
• A. R. Hogue, Origins of the Common Law (1966)
• R. C. van Caenegem,The Birth of the English Common Law (1973)
• J. H. Baker, The Legal Professionand the Common Law (1986)
• Richard L. Abel and Philip S. C. Lewis, ed., TheCommon Law World (1988)