Common Law

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Common Law

Introduction to Common Law

“Common Law, term used to refer to the main body of English unwritten law that evolved from the 12th century onward. The name comes from the idea that English medieval law, as administered by the courts of the realm, reflected the “common”customs of the kingdom. This system of law prevails in Britain and in those countries, such as Canada and the United States, that were originally colonized by English settlers.”(1)

The Common Law Legal System

See also: Common Law Systems

“The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. Common law can be contrasted to the civil-law system, based on ancient Roman law, found in continental Europe and elsewhere (see Civil Law; Roman Law). Whereas civil-law judges resolve disputes by referring to statutory principles arrived at in advance, common-law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants.

As the number of judicial decisions accumulate on a particular kind of dispute, general rules or precedents emerge and become guidelines for judges deciding similar cases in the future. Subsequent cases, however, may reveal new and different facts and considerations, such as changing social or technological conditions. A common-law judge is then free to depart from precedent and establish a new rule of decision, which sets a new precedent as it is accepted and used by different judges in other cases. In this manner, common law retains a dynamic for change. As the U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his book, The Common Law (1881): “The life of the [common] law has not been logic; it has been experience.”

In all common-law systems, a pyramidal structure of courts exists to define and refine the law. At the base of the pyramid are trial courts, composed of a single judge and a jury selected from local citizens. The judge controls the conduct of the court and the admission of evidence. After both sides have presented their evidence, the judge instructs the jury on the appropriate legal principles to be applied in determining the case. The jury then weighs the facts and applies the law, as stated by the judge, in order to reach a verdict or judgment.

Above the trial courts, layers of appellate courts, composed entirely of judges, exist to adjudicate disputes. These disputes center on whether or not the trial judge applied the correct principles of law. (The jury’s determination of fact and its ultimate verdict or judgment are not subject to appellate review, however, in order to preserve the independence of the jury as a check on judicial power.) The interpretations of law made by appellate courts form the precedents that govern future cases. Furthermore, the importance of a precedent for any given court depends on that court’s position in the pyramidal structure; for example, a precedent set by an appellate court has greater force in trial courts than in other appellate courts.”(2)

Reporting the Unwritten Law

“Common law has been known as unwritten law, because it is not collected in a single source. Reports of the judicial decisions from which the common law was derived were only occasionally circulated from the 12th to the 16th century. Starting in the 17th century formal reports of some decisions were published by private parties. These early reports were supplemented by infrequent scholarly treatises summarizing large segments of the case law, such as those of Sir Edward Coke (published in 1628) and Sir William Blackstone (1765-69). As reporting improved, the influence of these treatise writers diminished. In the 19th century the courts themselves took responsibility for publishing judicial decisions in both Britain and the U.S. It is primarily decisions of appellate rather than trial courts that are published.”(3)

Common Law in England

“Common law is distinguished from other forms of judge-made law from parallel court systems. In medieval times, for example, common-law courts were secular, as contrasted with the ecclesiastical courts of the Roman Catholic church. Common-law courts did not deal with merchant law, which was administered in mercantile courts, or with maritime law, administered in the admiralty court.

The most important parallel system was equity jurisdiction. Equity originated in early English law when subjects petitioned the monarch for justice. Such petitions were delegated to the lord chancellor and later to a tribunal called the court of chancery. Equity grew into a special body of rules over and above those administered in other royal courts of law. At first, common-law courts were more bound by precedent than were courts of equity, which provided remedies based on notions of fairness to litigants who were denied relief on technical grounds under common law.

By the end of the medieval period, common law and equity constituted the vast bulk of all English law. As common law became less formal and as equity accumulated its own set of precedents, these two forms of judge-made law grew closer together. Britain abolished the distinction between common law and equity in the Judicature Act of 1873. The ultimate effect of the growth and absorption of equity jurisdiction was to gradually expand the range of disputes that could be adjudicated in formal courts.

During and after the Industrial Revolution, in response to the growing complexity of law and the need for greater clarity and accessibility, the British Parliament asserted itself as the principal source of new law, modifying and adding to the body of judge-made law by statute. In modern times, the statutes of Parliament have come to encompass most legal relationships. The common law, however, remains in force to help interpret statutes, many of which are primarily restatements of common-law rules and principles.”(4)

Common Law in the United States

Most of the British common law as it existed at the time of the American Revolution became the foundation of a distinctly American system of law. Common law has varied from state to state, but only one state, Louisiana, differs significantly from the rest, basing its system on the French civil-law model. In each state the highest appellate court, usually the state supreme court, is the ultimate arbiter of the common law, subject to alterations by legislative action. The U.S. Supreme Court is the ultimate arbiter of all federal law and of the U.S. Constitution, which is superior to all other laws. As in Britain, statutory law has largely supplanted common law in state and federal systems, although common law is still influential. The order of authority of law in the United States, is the Constitution, treaties with foreign powers and acts of Congress, state constitutions, state statutory law, and finally the common law. (5)

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 in common-law cases came into being, and a doctrine of stare decisis (pronounced STAR-ay-de-SIGH-sus) became accepted in English courts. Stare decisis means, in Latin, “let the decision stand.”

Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of “estates” in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract.

The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare.

Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in “cases of first impression,” a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court.

Characteristic Features of Common Law

The distinctive feature of common law is that it represents the law of thecourts as expressed in judicial decisions. The grounds for deciding cases are foundin precedents provided by past decisions, as contrasted to the civil law system,which is based on statutes and prescribed texts. Besides the system of judicialprecedents, other characteristics of common law are trial by jury and the doctrineof the supremacy of the law. Originally, supremacy of the law meant that not eventhe king was above the law; today it means that acts of governmental agencies aresubject to scrutiny in ordinary legal proceedings.Judicial precedents derive their force from the doctrine of stare decisis[Lat.,=stand by the decided matter], i.e., that the previous decisions of the highestcourt in the jurisdiction are binding on all other courts in the jurisdiction. Changingconditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the restof the English-speaking world. This gives the system flexibility, while generalacceptance of certain authoritative materials provides a degree of stability.Nevertheless, in many instances, the courts have failed to keep pace with socialdevelopments and it has become necessary to enact statutes to bring aboutneeded changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law.

Typically, however, in statutory interpretation the courts have recourse to thedoctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.(6)

Development of Common Law

Early common law was somewhat inflexible; it would not adjudicate a casethat did not fall precisely under the purview of a particular writ and had an unwieldyset of procedural rules. Except for a few types of lawsuits in which the object wasto recover real or personal property, the only remedy provided was moneydamages; the body of legal principles known as equity evolved partly to overcomethese deficiencies. Until comparatively recent times there was a sharp divisionbetween common law (or legal jurisprudence) and equity (or equitable jurisprudence). In 1848 the state of New York enacted a code of civil procedure(drafted by David Dudley Field) that merged law and equity into one jurisdiction.Thenceforth, actions at law and suits in equity were to be administered in the samecourts and under the same procedure. The Field code reforms were adopted bymost states of the United States, by the federal government, and by the UnitedKingdom (in the Judicature Act of 1873). (7)


  1. “Common Law,”Microsoft® Encarta® Online Encyclopedia 2000, Contributed by Heathcote W. Wales, J.D.,Associate Professor of Law, Georgetown University Law Center. Contributor to law review journals.
  2. Idem
  3. Idem
  4. Idem
  5. Idem
  6. The Columbia Encyclopedia, Fifth Edition Copyright ©1993, Columbia University
  7. Idem

See Also

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)

Common law. The Giants and the Gods
Common law. Our Lady and Her Knights

References and Further Reading

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Common Law

Common Law, term used to refer to the main body of English unwritten law that evolved from the 12th century onward. The name comes from the idea that English medieval law, as administered by the courts of the realm, reflected the “common” customs of the kingdom. This system of law prevails in Britain and in those countries, such as Canada and the United States, that were originally colonized by English settlers. (1)

Common Law in International Trade

Meaning of Common Law, according to the Dictionary of International Trade (Global Negotiator): The body of law derived from usages, customs, and judicial decisions, as distinguished from statutes. See Civil Law.

Middle Ages, Common Law

From the book The Clergyman’s Hand-book of Law, about Middle Ages, Common Law (1): During the Middle Ages there was a constant effort on behalf of the ecclesiastical courts to extend their jurisdiction, and a counter-effort on behalf of the state courts to assume jurisdiction of cases under the ecclesiastical law. In England, from the conquest of William the Conqueror to the Reformation, the extension of the jurisdiction of the ecclesiastical courts brought the new element of English common law into the canon law; and much of the canon law, following the jurisdiction assumed by the state courts, became the common law of the kingdom of England (Justinian, Sandar, p. 21; Cyc, vol. viii, p. 366, vol. xiv, p. 1228; Eq. Jurisprudence, Pomeroy, vol. i, p. 1; The Science of Jurisprudence, Taylor, p. 255 et seq; Blackstone, vol. i, pp. 18-20, 63; Kent, vol. i, p. 10; English Constitution, Creasy).

Common Law Perspective

Interpretation of Statutes: Common Law and Civil Law Perspectives

Read the entry about the Common Law Perspective,and about the Civil Law Perspective.


Common Law

This entry provides an overview of the legal framework of common law, with a description of the most significant features of common law at international level.

Related Work and Conclusions


See Also

  • Interpretation
  • Reasoning
  • Codification


See Also

References (Papers)

  • A Novel Tool For Teaching Property: Starting With The Questions, Tim Iglesias, Jul 2017
  • Finding A Duty To Consult Aboriginal Peoples During The Negotiation Of Free Trade Agreements (Ftas) And Foreign Investment Promotion And Protection Agreements (Fipas), Katya Lena Richardson, Apr 2017
  • Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon, Feb 2017
  • Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff, Jan 2017
  • Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano, Jan 2017
  • Freedom To Mislead: The Fictitious Freedom To Contract Around Fraud Under Delaware Law, Hao Jiang, Dec 2016


Notes and References

  1. Charles M. Scanlan, The Clergyman’s Hand-book of Law. The Law of Church and Grave (1909), Benziger Brothers, New York, Cincinnati, Chicago

See Also

  • Religion
  • Church


Notes and References

  1. Encarta Online Encyclopedia

See Also

The Legal History of Common Law

This section provides an overview of Common Law


See Also

  • Legal Biography
  • Legal Traditions
  • Historical Laws
  • History of Law

Further Reading

Hierarchical Display of Common law

Law > Sources and branches of the law > Source of law

Common law

Concept of Common law

See the dictionary definition of Common law.

Characteristics of Common law


Translation of Common law

Thesaurus of Common law

Law > Sources and branches of the law > Source of law > Common law

See also

  • AGCC
  • Arab Gulf Cooperation Council
  • GCC
  • Cooperation Council for the Arab States of the Gulf

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