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In law, common law (also known as judicial precedent or judge-made law, or
case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is calle ...
) is the body of law created by judges and similar quasi-judicial
tribunals A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a single ...
by virtue of being stated in written opinions. ''
Black's Law Dictionary ''Black's Law Dictionary'' is the most widely used law dictionary Image:Legal Dictionaries.jpg, 300px, Several English and Russian legal dictionaries A law dictionary (also known as legal dictionary) is a dictionary that is designed and compiled to ...
'' is the most-used legal dictionary used among legal professionals in the U.S.
“The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified,” ''Southern Pacific Company v. Jensen'', 244 U.S. 205, 222 (1917) (Oliver Wendell Holmes, dissenting). By the early 20th century, legal professionals had come to reject any idea of a higher or natural law, or a law above the law. The law arises through the act of a sovereign, whether that sovereign speaks through a legislature, executive, or judicial officer.LawGovPol, ''Common law: advantages and disadvantages''
/ref>Washington Probate, "Estate Planning & Probate Glossary", ''Washington (State) Probate''

, 8 December 2008:, retrieved 7 November 2009."1. A law based on a prior court decision"
The defining characteristic of “common law” is that it arises as
precedent A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as ''
stare decisis A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based ...
''). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a " matter of first impression"), and are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). The court states an
opinion An opinion is a judgement Judgement (or US spelling judgment) is also known as ''adjudication'' which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has four disti ...
that gives reasons for the decision, and those reasons agglomerate with past decisions as
precedent A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
to bind future judges and litigants. Common law, as the body of law made by judges, (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.") stands in contrast to and on equal footing with
statutes A statute is a formal written enactment of a legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) ...
which are adopted through the legislative process, and
regulations Regulation is the management of complex systems according to a set of rules and trends. In systems theory Systems theory is the interdisciplinary study of system A system is a group of Interaction, interacting or interrelated elements that a ...
which are promulgated by the
executive branch The executive (short for executive branch or executive power) is the part of government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, a ...
(the interactions among these different sources of law are explained
later Later may refer to: * Future The future is the time after the past and present. Its arrival is considered inevitable due to the existence of time and the laws of physics. Due to the apparent nature of reality and the unavoidability of the fu ...
in this article). ''
Stare decisis A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based ...
'', 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. The common lawso named because it was "common" to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Normans, Duchy of Brittany, Bretons, County of Flanders, Flemish, and men from other Kingdom of France, French ...
in 1066. The
British Empire The British Empire was composed of the dominions, Crown colony, colonies, protectorates, League of Nations mandate, mandates, and other Dependent territory, territories ruled or administered by the United Kingdom and its predecessor states. ...

British Empire
later spread the English legal system to its far flung colonies, many of which retain the common law system today. These "common law systems" are
legal systems The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law Religious law includes ethical and moral codes taught by religious traditions. Different religio ...
that give great weight to judicial precedent, and to the style of reasoning inherited from the
English English usually refers to: * English language English is a West Germanic languages, West Germanic language first spoken in History of Anglo-Saxon England, early medieval England, which has eventually become the World language, leading lan ...
legal system.Charles Arnold-Baker, ''The Companion to British History'', s.v. "English Law" (London: Loncross Denholm Press, 2008), 484. Today, one-third of the world's population lives in common law jurisdictions or in
systems A system is a group of interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundaries, structure and purpose and expres ...
mixed with
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
, including Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Burma, Cameroon, Canada (both the
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
system and all its
provinces A province is almost always an administrative division Administrative division, administrative unitArticle 3(1). , country subdivision, administrative region, subnational entity, first-level subdivision, as well as many similar terms, are gene ...
except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong,
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
, Ireland,
Israel Israel (; he, יִשְׂרָאֵל, translit=Yīsrāʾēl; ar, إِسْرَائِيل, translit=ʾIsrāʾīl), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a ...
, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria,
Pakistan Pakistan, . Pronounced variably in English as , , , and . officially the Islamic Republic of Pakistan, is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a popul ...
, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore,
South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. With over Demographics of South Africa, 60 million people, it is the world's List of countries by population, 23rd-most ...
, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its
overseas territories A territory is an administrative division, usually an area that is under the jurisdiction of a sovereign state. In most country, countries, a ''territory'' is an organized division of an area that is controlled by a country but is not formally ...

overseas territories
such as Gibraltar), the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
(both the
federal system Federalism is a mixed or compound mode of government A government is the system or group of people governing an organized community, generally a State (polity), state. In the case of its broad associative definition, government norm ...
and 49 of its 50 states), and Zimbabwe. Some of these countries have variants on common law systems. In these countries, common law is considered synonymous with
case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is calle ...
.


Definitions

The term ''common law'' has many connotations. The first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen and are sometimes heard in everyday speech.


Common law as opposed to statutory law and regulatory law

The first definition of "common law" given in ''
Black's Law Dictionary ''Black's Law Dictionary'' is the most widely used law dictionary Image:Legal Dictionaries.jpg, 300px, Several English and Russian legal dictionaries A law dictionary (also known as legal dictionary) is a dictionary that is designed and compiled to ...
'', 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions; ynonymCASELAW, ontrastSTATUTORY LAW". This usage is given as the first definition in modern legal dictionaries, is characterized as the “most common” usage among legal professionals, and is the usage frequently seen in decisions of courts.For an example of this usage in a decision of the United States Supreme Court, see the quote from ''United States v Texas'' in the section “ Interaction of constitutional, statutory and common law” below. In this connotation, "common law" distinguishes the authority that promulgated a law. For example, the law in most
Anglo-America Anglo-America (also referred to as Anglo-Saxon America) most often refers to a region in the Americas The Americas (also collectively called America) is a landmass comprising the totality of North and South America South America ...
n
jurisdiction Jurisdiction (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be i ...
s includes "
statutory law Statutory law or statute law is written law passed by a body of legislature. This is as opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may ...

statutory law
" enacted by a
legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
, "
regulatory law {{Multiple issues, {{unreferenced, date=December 2013 {{Technical, date=May 2020 Regulatory law refers to law promulgated by an executive branch agency under a delegation from a legislature. Discussed at Regulation (law) and Primary and secondary ...
" (in the U.S.) or “
delegated legislation In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislature ...
” (in the U.K.) promulgated by
executive branch The executive (short for executive branch or executive power) is the part of government that enforces law, and has Moral responsibility, responsibility for the governance of a State (polity), state. In political systems based on the principle ...
agencies pursuant to delegation of rule-making authority from the legislature, and common law or "
case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is calle ...
", ''i.e.'', decisions issued by
courts A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a State (polity), state. In the case of its broad associative definition, govern ...

courts
(or
quasi-judicial A quasi-judicial body is a non-judicial body which can interpret law. It is an entity such as an Arbitration Image:LCIA.jpg, upright=1.5, The London Court of International Arbitration Arbitration, a form of alternative dispute resolution (ADR ...
tribunal A tribunal, generally, is any person or institution Institutions, according to Samuel P. Huntington Samuel Phillips Huntington (April 18, 1927 – December 24, 2008) was an American political scientist, adviser and academic. He spent ...

tribunal
s within agencies). This first connotation can be further differentiated into: ; (a) general 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 Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its env ...
and
procedural law Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court comprises the rules by which a court A court is any person or institution, often as a government A government is the system or g ...
before the 20th century, and even today, most
contract law A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Skagen', by Peder Severin Krøyer (1888) Demisted with DXO PhotoLab Clearview; ...
and the law of torts.Stuart Speiser, et al., The American Law of Torts, §§ 1:2, 1:5, and 1:6, Thompson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance f courtsto overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).''E.g.'', Hadley v Baxendale (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute); ''Marbury v. Madison'', 137 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.");''MacPherson v. Buick Motor Co.'', 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (discussed elsewhere in this article, adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute); Alexander Hamilton, ''
The Federalist ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the Pseudonym, collective pseudonym "Publius" to promote the History of the United States Constitution, ratificat ...
'', Nos. 78 and 81 (J. Cooke ed. 1961), 521–30, 541–55 ("The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."); see
rule against perpetuities The rule against perpetuities is a legal rule in the Anglo-American common law that prevents people from using legal instruments (usually a deed In common law In law, common law (also known as judicial precedent or judge-made law, or case law ...
for a judicially created law originating in 1682 that governs the validity of trusts and
future interests In property law Property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right ...
in
real property In England, English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures (also called Land improvement, improvements or Fixture (property law), fixtures) integr ...
,
Rule in Shelley's Case The Rule in ''Shelley's Case'' is a rule of law that may apply to certain future interests in real property and trusts created in common law jurisdictions.Moynihan, Cornelius, ''Introduction to the Law of Real Property'', 3d Edition, West Group (St. ...
for a rule created by judges in 1366 or before, and
life estate In common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictionary' ...
and
fee simple In English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in writte ...
for rules of real property ownership that were judicially created in the late 12th century as the crown began to give law-making power to courts.
; (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, sometimes called "interstitial common law", includes judicial interpretation of the
Constitution A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...

Constitution
, of legislative statutes, and of agency regulations, and the application of law to specific facts. Publication of decisions, and indexing, is essential to the development of common law, and thus governments and private publishers publish
law reports The Law Reports is the name of a series of law report en-GB, Law reports, label=none or en-US, reporters, label=none are series of books that contain judicial opinions from a selection of case law decided by court A court is any person or ...
. While all decisions in
common law jurisdictions In law, common law (also known as judicial precedent or judge-made law, or case law Case law, also used interchangeably with common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law create ...
are precedent (at varying levels and scope as discussed throughout the article on
precedent A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
), some become "leading cases" or "landmark decisions" that are cited especially often.


Common law legal systems as opposed to civil law legal systems

''Black's Law Dictionary'' 10th Ed., definition 2, differentiates "common law" jurisdictions and legal systems from "
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
" or "
code In communication Communication (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', mean ...
" jurisdictions. Common law 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 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. Civil law judges tend to give less weight to judicial precedent, which means that a civil law judge deciding a given case has more freedom to interpret the text of a statute independently (compared to a common law judge in the same circumstances), and therefore less predictably. For example, the
Napoleonic code The Napoleonic Code (, lit. "Code Napoleon"), officially the Civil Code of the French (; simply referred to as ) is the French French (french: français(e), link=no) may refer to: * Something of, from, or related to France France (), of ...
expressly forbade French judges to pronounce general principles of law. The role of providing overarching principles, which in common law jurisdictions is provided in judicial opinions, in civil law jurisdictions is filled by giving greater weight to scholarly literature, as explained
below Below may refer to: *Earth *Ground (disambiguation) *Soil *Floor *Bottom (disambiguation) *Less than *Temperatures below freezing *Hell or underworld People with the surname *Fred Below (1926–1988), American blues drummer *Fritz von Below (1853 ...
. Common law systems trace their history to England, while civil law systems trace their history through the
Napoleonic Code The Napoleonic Code (, lit. "Code Napoleon"), officially the Civil Code of the French (; simply referred to as ) is the French French (french: français(e), link=no) may refer to: * Something of, from, or related to France France (), of ...
back to the
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of . Scholars of ...
of
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
.


Law as opposed to equity

''Black's Law Dictionary'' 10th Ed., definition 4, differentiates "common law" (or just "law") from "
equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the differe ...
". Before 1873,
England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest of England and the Celtic Sea to the southwest. E ...

England
had two complementary court systems: courts of "law" which could only award
money damages At common law, damages are a legal remedy, remedy in the form of a money, monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. ...
and recognized only the legal owner of property, and courts of "equity" (
courts of chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction ov ...
) that could issue
injunctive relief An injunction is a legal Law is a system of rules created and law enforcement, enforced through social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of l ...
(that is, a
court order A court order is an official proclamation by a judge A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organize ...
to a party to do something, give something to someone, or stop doing something) and recognized
trusts A trust is a legal relationship in which the holder of a right (eg. title to a chattel) gives it to another person or entity who must keep and use it solely for another's benefit. In English common law English law is the common law legal sy ...
of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Additionally, even before the separate courts were merged, most courts were permitted to apply both law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" 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 In property law, title is an intangible construct representing a bundle of rights The bundle of rights is a metaphor to explain the complexities of property Property (''latin: Res Privata'') in the Abstract and concrete, abstract is what be ...
" 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 A jury trial, or trial by jury, is a lawful proceeding in which a jury A jury is a sworn body of people (the jurors) convened to render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submit ...
applies (a determination of a fact necessary to resolution of a "common law" claim) vs. whether the issue will be decided by a
judge A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a State (polity), state. In th ...

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 (in the sense of this first connotation) principles of binding precedent.


Archaic meanings and historical uses

In addition, there are several historical (but now archaic) uses of the term that, while no longer current, provide background context that assists in understanding the meaning of "common law" today. In one usage that is now archaic, but that gives insight into the history of the common law, "common law" referred to the pre-Christian system of law, imported by the Saxons to England, and dating to before the
Norman conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Normans, Duchy of Brittany, Bretons, County of Flanders, Flemish, and men from other Kingdom of France, French ...
, and before there was any consistent law to be applied.One example of this usage is in a letter from Thomas Jefferson to Dr. Thomas Cooper. Another example of this usage is in another letter of Jefferson, to John Cartright. "Common law" as the term is used today in common law countries contrasts with ''
ius commune ''Jus commune'' or ''ius commune'' is Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through t ...
''. 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. David John Ibbetson, ''Common Law and Ius Commune'' p. 20 (2001) The English
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas (England), Court of Common Pleas at Westminster, which was created to permit individuals to pr ...
dealt with lawsuits in which the Monarch had no interest, i.e., between commoners. ''Black's Law Dictionary'' 10th Ed., definition 3 is "General law common to a country as a whole, as opposed to special law that has only local application." 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 in "
assize The courts of assize, or assizes (), were periodic courts held around England and Wales England and Wales () is a legal jurisdiction covering England and Wales, two of the four countries of the United Kingdom, parts of the United Kingdom. England a ...

assize
s". 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.


Misconceptions and imprecise nonlawyer usages

As used by non-lawyers in popular culture, the term "common law" connotes law based on ancient and unwritten universal custom of the people.West's encyclopedia of American law, defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts." The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century. However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law, and it is not held within the legal profession today. The "ancient unwritten universal custom" definition was given in 19th-century editions of ''
Black's Law Dictionary ''Black's Law Dictionary'' is the most widely used law dictionary Image:Legal Dictionaries.jpg, 300px, Several English and Russian legal dictionaries A law dictionary (also known as legal dictionary) is a dictionary that is designed and compiled to ...
'' ("the common law comprises the body of those principles and rules of action ... which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England"), but that definition was removed by the late 20th Century, and remains absent from the 10th Edition.
states twelve definitions for "common law," none of which reflect the "ancient unwritten universal custom" view. Under the modern view, “common law” is not grounded in “custom” or "ancient usage", but rather acquires force of law instantly (without the delay implied by the term "custom" or "ancient") when pronounced by a higher court, because and to the extent the proposition is stated in judicial opinion. From the earliest times through the late 19th century, the dominant theory was that the common law was a pre-existent law or system of rules, a social standard of justice that existed in the habits, customs, and thoughts of the people. Under this older view, the legal profession considered it no part of a judge's duty to make new or change existing law, but only to expound and apply the old. By the early 20th century, largely at the urging of Oliver Wendell Holmes (as discussed throughout this article), this view had fallen into the minority view: Holmes pointed out that the older view worked undesirable and unjust results, and hampered a proper development of the law. In the century since Holmes, the dominant understanding has been that common law “decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law”. Holmes wrote in a 1917 opinion, “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified." Among legal professionals (lawyers and judges), the change in understanding occurred in the late 19th and early 20th centuries (as explained later in this article), though lay (non-legal) dictionaries were decades behind in recognizing the change. The reality of the modern view, and implausibility of the old "ancient unwritten universal custom" view, can be seen in practical operation: under the pre-1870 view, (a) the "common law" should have been absolutely static over centuries (but it evolved), (b) jurisdictions could not logically diverge from each other (but nonetheless did and do today), (c) a new decision logically needed to operate retroactively (but did not), and (d) there was no standard to decide which English medieval customs should be "law" and which should not. All five tensions resolve under the modern view: (a) the common law evolved to meet the needs of the times (''e.g.'',
trial by combat Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law Early Germanic law was the form of law followed by the early Germanic peoples The Germanic peoples were a historical group of people livin ...
passed out of the law very early), (b) the common law in different jurisdictions may diverge, (c) new decisions may (but need not) have retroactive operation, and (d) court decisions are effective immediately as they are issued, not years later, or after they become "custom", and questions of what "custom" might have been at some "ancient" time are simply irrelevant. * Common law, as the term is used among lawyers in the present day, is not grounded in “custom” or "ancient usage." Common law acquires force of law because it is pronounced by a court (or similar tribunal) in an opinion. * Common law is not frozen in time, and no longer beholden to 11th, 13th, or 17th century English law. Rather, the common law evolves daily and immediately as courts issue precedential decisions (as explained later in this article), and all parties in the legal system (courts, lawyers, and all others) are responsible for up-to-date knowledge. There is no fixed reference point (for example the 11th or 18th centuries) for the definition of "common law", except in a handful of isolated contexts. Much of what was "customary" in the 13th or 17th or 18th century has no part of the common law today; much of the common law today has no antecedent in those earlier centuries. * The common law is not "unwritten". Common law exists in writing—as must any law that is to be applied consistently—in the written decisions of judges. * Common law is not the product of "universal consent". Rather, the common law is often anti-majoritarian.


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. 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 Jurisdiction (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be i ...
, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by
appellate courts An appellate court, commonly called an ''appeals court'', ''court of appeals'' (American English), ''appeal court'', ''court of appeal'' (British English), ''court of second instance'' or ''second instance court'', is any court of law that is em ...
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 Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. ...
,
statutory law Statutory law or statute law is written law passed by a body of legislature. This is as opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may ...
and
regulatory law {{Multiple issues, {{unreferenced, date=December 2013 {{Technical, date=May 2020 Regulatory law refers to law promulgated by an executive branch agency under a delegation from a legislature. Discussed at Regulation (law) and Primary and secondary ...
also give rise to considerable complexity.


Common law evolves to meet changing social needs and improved understanding

Oliver Wendell Holmes Jr. 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." noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but " s method is inductive, and it draws its generalizations from particulars". The common law 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 Social philosophy examines questions about the foundations of social institution Institutions, according to Samuel P. Huntington, are "stable, valued, recurring patterns of behavior." Institutions can refer to social mechanism, mechanisms which ...
. 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 to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is 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 is the gradual change in liability for negligence. 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 The doctrine of privity (law), privity of contract law, contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. The premise is that only parti ...
. 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 ''Winterbottom v Wright'' (184210 M&W 109was an important case in English common law responsible for constraining the law's 19th-century stance on negligence. Facts The plaintiff Winterbottom had been contract A contract is a legally binding ...
'', 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 1852, in the case of '' Thomas v. Winchester'', when New York's highest court 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'' relied on this reason to create an exception to the "privity" rule. In 1909, New York held in ''Statler v. Ray Mfg. Co.'' 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'' (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.'', in 1916, Benjamin Cardozo, 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: 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 v. WWinterbottom'', 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 v. Buick Motor Co., 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. The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The ratio decidendi, 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.


Publication of decisions

All law systems rely on written publication of the law, so that it is accessible to all. Common law decisions are published in
law reports The Law Reports is the name of a series of law report en-GB, Law reports, label=none or en-US, reporters, label=none are series of books that contain judicial opinions from a selection of case law decided by court A court is any person or ...
for use by lawyers, courts and the general public. After the American Revolution, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.Social Law Library, Common Law or Civil Code?, Boston Mass. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function United States Reports#history, in 1874. West (publisher), West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw," while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.


Interaction of constitution, statute, and executive branch regulation with common law

In common law legal systems, the common law is crucial to understanding almost all important areas of law. For example, in English law, England and Wales, in English Canada, and in most states of the Law of the United States, United States, the basic law of contracts, torts and property law, 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, 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, or the criminal law), legislature-enacted statutes or agency-promulgated regulations generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the #Disambiguate statute, interstitial common law. To find out what the precise law is that applies to a particular set of facts, one has to locate
precedent A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
ial decisions on the topic, and reason from those decisions by analogy. In #Disambiguate civil law, common law jurisdictions (in the sense opposed to "civil law"), legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law. As the United States Supreme Court explained in ''United States v Texas'', 507 U.S. 529 (1993): :Just as longstanding is the principle that "[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." ''Isbrandtsen Co. v. Johnson'', 343 U.S. 779, 783 (1952); ''Astoria Federal Savings & Loan Assn. v. Solimino'', 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. ''Astoria'', 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. ''Mobil Oil Corp. v. Higginbotham'', 436 U. S. 618, 625 (1978); ''Milwaukee v. Illinois'', 451 U. S. 304, 315 (1981). For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification (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 would be resolved in the future by the courts based upon what they then understand to be the 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 law, ''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, ''United States v. Hudson'',United States v. Hudson and Goodwin, ''United States v. Hudson'', 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. Code of Virginia, 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 (law), estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly—that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (''cf''. judicial activism). This principle is applied more strongly in fields of commercial law (contracts and the like) where predictability is of relatively higher value, and less in torts, where courts recognize a greater responsibility to “do justice.” Where a tort is rooted in common law, 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 List of landmark court decisions in the United States, landmark decision on "the judicial power" was ''Marbury v. Madison'', . 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 A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
. Further interactions between common law and either statute or regulation are discussed further in the articles on Skidmore_v._Swift_%26_Co., ''Skidmore'' deference, Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.#Chevron_deference, ''Chevron'' deference, and Auer_v._Robbins, ''Auer'' deference.


Overruling precedent—the limits of ''stare decisis''

The #United States federal system (1789 and 1938), United States federal courts are divided into twelve regional circuits, each with a United States courts of appeals, 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. 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 jurisdictions of England and Wales and of Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions but not for criminal law cases in Scotland. From 1966 to 2009, this judicial functions of the House of Lords, power lay with the House of Lords, granted by the Practice Statement of 1966. Canada's federal system, described #CL Canada federal, 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." 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, 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 speech, freedom of expression rights apply. In contrast, in jurisdictions with very weak respect for precedent, fine Question of law, 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 (unless the written law is very clear and kept updated) 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.Theodore Eisenberg & Geoffrey P. Miller, The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Held Companies’ Contracts (2008). New York University Law and Economics Working Papers. Paper 124, http://lsr.nellco.org/nyu_lewp/124 (based on a survey of 2882 contracts, "New York law plays a role for major corporate contracts similar to the role Delaware law plays in the limited setting of corporate governance disputes. ... New York's dominance is striking. It is the choice of law in approximately 46 percent of contracts," and if merger contracts excluded, over half) 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 Corporations law, corporate law, and American contracts relating to corporate law issues (Mergers and acquisitions, 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. 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. 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 law, admiralty cases. 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).


History


Origins

The common lawso named because it was "common" to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Normans, Duchy of Brittany, Bretons, County of Flanders, Flemish, and men from other Kingdom of France, French ...
in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and Hundred (county division), hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, as did the University of Oxford, universities of Oxford and University of Cambridge, Cambridge, and large landholders also held their own manorial and seigniorial courts as needed. The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs all of which were incorporated into the Norman common law is still a subject of much discussion. Additionally, the Catholic Church operated its own court system that adjudicated issues of Canon law of the Catholic Church, canon law. The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in The National Archives (United Kingdom), the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center). The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom (law), custom and
precedent A precedent is a principle or rule established in a previous legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court A court is any person or institution, often as a government inst ...
. 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 damages, 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 legal procedure, 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 1154, Henry II of England, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common Traditional knowledge, local knowledge, not necessarily through the presentation of evidence (law), evidence, a distinguishing factor from today's civil and criminal court systems. At the time, royal government centered on the ''Curia regis, Curia Regis'' (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of Parliament of the United Kingdom, Parliament, the Star Chamber, and Privy Council of the United Kingdom, Privy Council. Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. The king's itinerant justices would generally receive a writ or commission under the great seal. They would then 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". The king's object was to preserve public order, but providing law and order was also extremely profitable–cases on forest use as well as fines and forfeitures can generate "great treasure" for the government. Eyres (a Norman French word for judicial circuit, originating from Latin ''iter'') are more than just courts; they would supervise local government, raise revenue, investigate crimes, and enforce feudal rights of the king. There were complaints that the ''eyre'' of 1198 reducing the kingdom to poverty and Cornishmen fleeing to escape the eyre of 1233. Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canon law, canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. 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). The English
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas (England), Court of Common Pleas at Westminster, which was created to permit individuals to pr ...
was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster#Westminster Hall, Palace of Westminster, permanently except in the vacations between the four terms of the Legal year. Judge-made common law operated as the primary source of law for several hundred years, before Parliament of England, Parliament acquired legislative powers to create
statutory law Statutory law or statute law is written law passed by a body of legislature. This is as opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may ...
. 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 lawWilliam Burnham, ''Introduction to the Law and Legal System of the United States'', 4th ed. (St. Paul, Thomson West, 2006), 42.—"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. Justice Oliver Wendell Holmes Jr. summarized centuries of history in 1917, "judges do and must legislate."''Southern Pacific Co. v. Jensen'', 244 U.S. 205, 221 (1917) (Holmes, J., dissenting). There are legitimate debates on how the powers of courts and legislatures should be balanced. However, the view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. In England, judges have devised a number of rules as to Mechanisms of the English common law, how to deal with precedent decisions. The early development of case-law in the thirteenth century has been traced to Henry de Bracton, Bracton's ''On the Laws and Customs of England'' and led to the yearly compilations of court cases known as Year Books, of which the first extant was published in 1268, the same year that Bracton died. The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.


Influence of Roman law

The term "common law" 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 Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
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. However, the first common law scholars, most notably Ranulf de Glanvill, Glanvill and Henry de Bracton, 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. 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 ''Corpus Juris Civilis, Institutes''. 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'', and Roman law ideas regained importance with the revival of academic law schools in the 19th century. 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.


Coke and Blackstone

The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke, in his treatise, ''Institutes of the Lawes of England'' in the 17th century. 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.


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 common 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 precedent 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 (1700s), Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion. 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. Yet, adoption of the common law in the newly independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later President) John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in 1803, lawyers in Massachusetts donated their books to found a law library. A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose." For several decades after independence, English law still exerted influence over American common law—for example, with ''Byrne v Boadle'' (1863), which first applied the res ipsa loquitur doctrine.


Decline of Latin maxims and "blind imitation of the past", 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, "Nemo iudex in causa sua, 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. Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. Oliver Wendell Holmes Jr. in his famous article, "The Path of the Law", 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 :w:syllogism, 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 :w:axiom, 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 Brandeis Brief, 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. 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.


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 #Disambiguate equity, common law (as opposed to equity)) 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 (law), equity, administered by the Lord Chancellor, in the courts of Court of equity, chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. In England, courts of law (#Disambiguate equity, as opposed to equity) were combined with Court of equity, courts of equity by the Judicature Acts of 1873 and 1875, with equity prevailing in case of conflict. In the United States, parallel systems of #Disambiguate equity, 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 #Disambiguate equity, law and equity into one form of action, the "civil action". Fed.R.Civ.P. . The distinction survives to the extent that issues that were "#Disambiguate equity, common law (as opposed to equity)" as of 1791 (the date of adoption of the Seventh Amendment to the United States Constitution, Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge. The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided Courts of #Disambiguate equity, Law and Courts of Chancery, for example, the Delaware Court of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division.


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

For centuries, through to the 19th century, the common law recognized only specific Form of action, forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into exactly one of them: Debt, Detinue, Covenant, Special Assumpsit, General Assumpsit, Trespass, Trover, Replevin, Case (or Trespass on the Case), and Ejectment. 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. 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.


Alternatives to common law systems


Civil law systems—comparisons and contrasts to common law

The main alternative to the common law system is the
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
system, which is used in Continental Europe, and most of Central America, Central and South America.


Judicial decisions play only a minor role in shaping civil law

The primary contrast between the two systems is the role of written decisions and precedent. In common law jurisdictions, nearly every case that presents a ''bona fide'' disagreement on the law is resolved in a written opinion. The legal reasoning for the decision, known as ''ratio decidendi'', not only determines the court's judgment between the parties, but also stands as precedent for resolving future disputes. In contrast, civil law decisions typically do not include explanatory opinions, and thus no precedent flows from one decision to the next. In common law systems, a single decided case is binding #Disambiguate statute, common law (connotation 1) to the same extent as statute or regulation, under the principle of ''stare decisis''. In contrast, in civil law systems, individual decisions have only advisory, not binding effect. In civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called ''jurisprudence constante''. 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. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court.


Adversarial system vs. inquisitorial system

#Disambiguate civil law, Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator. Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
systems, criminal proceedings proceed under 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 his or her 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. In contrast, in an adversarial system, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented. "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." This principle applies with force in all issues in criminal matters, and to factual issues: courts seldom engage in fact gathering on their own initiative, but decide facts on the evidence presented (even here, there are exceptions, for "legislative facts" as opposed to "adjudicative facts"). On the other hand, on issues of law, courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them. The United States Supreme Court regularly decides based on issues raised only in amicus briefs from non-parties. One of the most notable such cases was ''Erie Railroad v. Tompkins'', a 1938 case in which neither party questioned the ruling from the 1842 case ''Swift v. Tyson'' that served as the foundation for their arguments, but which led the Supreme Court to overturn ''Swift'' during their deliberations. To avoid lack of notice, courts may invite briefing on an issue to ensure adequate notice. However, there are limits—an appeals court may not introduce a theory that contradicts the party's own contentions. 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 (#Disambiguate civil law, connotation 2) and
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
jurisdictions. In both systems, treatises compile decisions and state overarching principles that (in the author's opinion) explain the results of the cases. In neither system are treatises considered "law," but the weight given them is nonetheless quite different. In common law jurisdictions, 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. Chief Justice Roberts noted the "great disconnect between the academy and the profession." When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the Legal history, 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 Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
jurisdictions, courts give the writings of law school, 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.


Narrowing of differences between common law and civil law

The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to
case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is calle ...
but not binding) in civil law countries, and the growing importance of code law, statute law and codes in common law countries. Examples of common law being replaced by statute or codified rule in the United States include Common law offence#United States, criminal law (since 1812, U.S. federal courts and most but not all of the states have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But note that in each case, the statute sets the general principles, but the #Disambiguate statute, interstitial common law process determines the scope and application of the statute. An example of convergence from the other direction is shown in the 1982 decision ''Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health'' (), in which the European Court of Justice held that questions it has already answered need not be resubmitted. This showed how a historically distinctly common law principle is used by a court composed of judges (at that time) of essentially civil law jurisdiction.


Other alternatives

The former Soviet Bloc and other socialist countries used a socialist law system, although there is controversy as to whether socialist law ever constituted a separate legal system or not. Much of the Muslim world uses legal systems based on Sharia (also called Sharia, Islamic law). Many churches use a system of canon law. The canon law of the Catholic Church influenced the common law during the medieval period through its preservation of
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
doctrine such as the presumption of innocence.


Common law legal systems in the present day


In jurisdictions around the world

The common law constitutes the basis of the legal systems of: * Law of Australia, Australia (both federal and individual states), * Law of Bangladesh, Bangladesh, * Belize, * Brunei, * Canada (both
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
and the #CL Canada provinces, individual provinces (except Quebec)), * the Caribbean jurisdictions of Laws of Antigua and Barbuda, Antigua and Barbuda, Barbados, Law of the Bahamas, Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, *Ghana, * Law of Hong Kong, Hong Kong, *
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
, * Law of the Republic of Ireland, Ireland, * Israeli law, Israel, * Kenya, * Law of Nigeria, Nigeria, * Law of Malaysia, Malaysia, * Myanmar, * Law of New Zealand, New Zealand, *
Pakistan Pakistan, . Pronounced variably in English as , , , and . officially the Islamic Republic of Pakistan, is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a popul ...
, * Philippine legal codes, Philippines, * Law of Singapore, Singapore, * Law of South Africa, South Africa, * United Kingdom: :* English law, England and Wales, :* Northern Ireland law, Northern Ireland, * United States (both the #CL United States federal, federal system and the individual #CL United States, states (with the partial exception of #Louisiana (1700s), Louisiana)), and many other generally English-speaking countries or Commonwealth of Nations, Commonwealth countries (except the UK's #CL Scotland, Scotland, which is bijuridicial law, 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 Law of Quebec, Quebec (which follows the Napoleonic Code, bijuridicial law or civil code of France in part), South Africa and Sri Lanka (which follow #CL Roman Dutch, Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. Guyana and Saint Lucia have mixed Common Law and Civil Law systems. The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.


Scotland

Scotland is often said to use the civil law system, but it has Scots law, a unique system that combines elements of an uncodified civil law dating back to the
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of . Scholars of ...
with an element of its own common law long predating the Act of Union (1707), Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages), founded on the customary laws of the tribes residing there. Historically, Scots Law, Scottish common law differed in that the use of ''precedent'' was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a ''precedent'', and principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a ''stare decisis'' akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same, but in many matters (particularly those of UK-wide interest), they are similar. Scotland shares the Supreme Court of the United Kingdom, Supreme Court with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK negligence, law of negligence is based on ''Donoghue v Stevenson'', a case originating in Paisley, Renfrewshire, Paisley, Scotland. Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom (before October 2009, final appellate jurisdiction lay with the Judicial functions of the House of Lords, House of Lords).


United States


States of the United States (17th century on)

The centuries-old authority of the common law courts in England to develop law case by case and to apply statute law—"legislating from the bench"—is a traditional 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. Justice Oliver Wendell Holmes Jr. summarized centuries of history in 1917, "judges do and must legislate” (in the federal courts, only interstitially, in state courts, to the full limits of common law adjudicatory authority).


= New York (17th century)

= The original colony of New Netherland was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was Second Anglo-Dutch War, recaptured by the Dutch. In 1664, the colony of New York (state), New York had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the Dutch colonization of the Americas, Netherlands were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers. When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the Feudalism, feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a Codification (law), codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The influence of Roman-Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.


= Louisiana (1700s)

= Under Law of Louisiana, Louisiana's codified system, the Louisiana Civil Code, private law—that is, substantive law between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, transmitted through Law of France, French law and Law of Spain, Spanish law, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the
Napoleonic Code The Napoleonic Code (, lit. "Code Napoleon"), officially the Civil Code of the French (; simply referred to as ) is the French French (french: français(e), link=no) may refer to: * Something of, from, or related to France France (), of ...
, as the latter was enacted in 1804, one year after the Louisiana Purchase. However, the two codes are similar in many respects due to common roots. Louisiana's
criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its env ...
largely rests on English common law. Louisiana's administrative law is generally similar to the administrative Procedure Act (United States), administrative law of the U.S. federal government and other U.S. states. Louisiana's
procedural law Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court comprises the rules by which a court A court is any person or institution, often as a government A government is the system or g ...
is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure. Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.


= California (1850s)

= The U.S. state of California has a system based on common law, but it has Codification (law), codified the law in the manner of
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
jurisdictions. The reason for the enactment of the California Codes in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western United States, Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case ''Li v. Yellow Cab Co.'', 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)


United States federal courts (1789 and 1938)

The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining broad statutory language (#Disambiguate statute, connotation 1(b) above), but, unlike state courts, do not generally act as an independent source of common law. Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. In 1938, the U.S. Supreme Court in ''Erie Railroad Co. v. Tompkins'
304 U.S. 64, 78
(1938), overruled earlier precedent, and held "There is no federal general common law," thus confining the federal courts to act only as interstitial interpreters of law originating elsewhere. ''E.g.'', ''Texas Industries v. Radcliff'', (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution. Later courts have limited ''Erie'' slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. ''See, e.g.'', ''Clearfield Trust Co. v. United States'', (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); ''see also'' ''International News Service v. Associated Press''
248 U.S. 215
(1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding); ''but see National Basketball Association v. Motorola, Inc.'', 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of ''INS'' "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.


United States executive branch agencies (1946)

Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the Administrative Procedure Act (United States), Administrative Procedure Act of 1946. For example, the National Labor Relations Board issues relatively few regulations, but instead promulgates most of its substantive rules through #Disambiguate statute, common law (connotation 1).


India, Pakistan, and Bangladesh (19th century and 1948)

The law of India, Pakistan, and Bangladesh are largely based on English law, English common law because of the long period of British Empire, British colonial influence during the period of the British India, British Raj. History of India, Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The ''Arthashastra'', dating from 400 BCE and the ''Manusmriti'', from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance. Manu (Hinduism), Manu's central philosophy was tolerance and Pluralism (political philosophy), pluralism, and was cited across Southeast Asia. Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the
British Empire The British Empire was composed of the dominions, Crown colony, colonies, protectorates, League of Nations mandate, mandates, and other Dependent territory, territories ruled or administered by the United Kingdom and its predecessor states. ...

British Empire
, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. After the failed Indian Rebellion of 1857, rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India. It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.


Post-partition India (1948)

Post-partition, Law of India, India retained its common law system. Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the United Nations guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India. The exception to this rule is in the state of Goa, annexed in stages in the 1960s through 1980s. In Goa, a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.


Post-partition Pakistan (1948)

Post-partition, Law of Pakistan, Pakistan retained its common law system.


Post-partition Bangladesh (1968)

Post-partition, Bangladesh retained its common law system.


Canada (1867)

Canadian law, Canada has separate federal and provincial legal systems.


Canadian provincial legal systems

Each Provinces and territories of Canada, province and territory is considered a separate jurisdiction with respect to case law. Each has its own procedural law in civil matters, statutorily created provincial courts and superior trial courts with inherent jurisdiction culminating in the Court of Appeal of the province. These Courts of Appeal are then subject to the Supreme Court of Canada in terms of appeal of their decisions. All but one of the provinces of Law of Canada, Canada use a common law system for civil matters (the exception being Law of Quebec, Quebec, which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).


Canadian federal legal system

Canadian Federal Courts operate under a separate system throughout Canada and deal with narrower range of subject matter than superior courts in each province and territory. They only hear cases on subjects assigned to them by federal statutes, such as immigration, intellectual property, judicial review of federal government decisions, and admiralty. The Federal Court of Appeal (Canada), Federal Court of Appeal is the appellate court for federal courts and hears cases in multiple cities; unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits. Canadian federal statutes must use the terminology of both the common law and civil law for civil matters; this is referred to as legislative bijuralism.


Canadian criminal law

Criminal law is uniform throughout Canada. It is based on the federal statutory Criminal Code, which in addition to substance also details procedural law. The administration of justice are the responsibilities of the provinces. Canadian criminal law uses a common law system no matter which province a case proceeds.


Nicaragua

Nicaragua's legal system is also a mixture of the English Common Law and Civil Law. This situation was brought through the influence of British administration of the Eastern half of the Mosquito Coast from the mid-17th century until about 1894, the William Walker (filibuster), William Walker period from about 1855 through 1857, USA interventions/occupations during the period from 1909 to 1933, the influence of USA institutions during the Somoza family administrations (1933 through 1979) and the considerable importation between 1979 and the present of USA culture and institutions.


Israel (1948)

Israeli law, Israel has a common law legal system. Its basic principles are inherited from the law of the Mandate for Palestine, British Mandate of Palestine and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the Supreme Court of Israel, supreme court in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. One of the primary reasons that the Constitution of Israel, Israeli constitution remains unwritten constitution, unwritten is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the Knesset (which, following the doctrine of parliamentary sovereignty, holds near-unlimited power).


Roman Dutch common law

Roman Dutch law, Roman Dutch common law is a bijuridical or mixed system of law similar to the common law system in Scotland and #Louisiana (1700s), Louisiana. Roman Dutch common law jurisdictions include Law of South Africa, South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka and Zimbabwe. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French ''code civil'' in 1809, however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 17th century such as Hugo Grotius, Grotius and Johannes Voet, Voet. In practice, the majority of decisions rely on recent precedent.


Ghana

Ghana follows the English common-law tradition which was inherited from the British during her colonisation. Consequently, the laws of Ghana are, for the most part, a modified version of imported law that is continuously adapting to changing socio-economic and political realities of the country. The Bond of 1844 marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British and gave the British judicial authority. Later, the Supreme Court Ordinance of 1876 formally introduced British law, be it the common law or statutory law, in the Gold Coast. Section 14 of the Ordinance formalised the application of the common-law tradition in the country. Ghana, after independence, did not do away with the common law system inherited from the British, and today it has been enshrined in the 1992 Constitution of the country. Chapter four of Ghana's Constitution, entitled “The Laws of Ghana”, has in Article 11(1) the list of laws applicable in the state. This comprises (a) the Constitution; (b) enactments made by or under the authority of the Parliament established by the Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution; (d) the existing law; and (e) the common law.According to Article 11(2) of Ghana’s Constitution, the common law of Ghana shall comprise the rule of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law, including those determined by the Superior Court of Judicature. Thus, the modern-day Constitution of Ghana, like those before it, embraced the English common law by entrenching it in its provisions. The doctrine of judicial precedence which is based on the principle of ''stare decisis'' as applied in England and other pure common law countries also applies in Ghana.


Scholarly works

Edward Coke, a 17th-century Lord Chief Justice of the English Court of Common Pleas and a Member of Parliament (United Kingdom), Member of Parliament (MP), wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his ''Institutes of the Lawes of England, 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 Supreme Court of the United States, U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called ''The Common Law (Holmes), 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 Law school in the United States, U.S. law schools. In the United States, Restatement of the Law, 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

* Outline of law


Common law national legal systems today

* List of national legal systems#Common law, List of common law national legal systems


Common vs. civil laws

* Civil law (legal system), Civil law * Common law offences


Development of English legal system and case law

* Books of authority * Lists of case law


Early common law systems

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


Stages of common law trials

* Arraignment * Grand jury * Jury trial


Common law in specific areas


Common law as applied to matrimony

* Alimony * Common-law marriage


Employment

* Faithless servant


Slavery

* Slavery at common law


References


Further reading

* Chapters 1–6. * Crane, Elaine Forman (2011), ''Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America.'' Ithaca, NY: Cornell University Press. * * * * * * * S. F. C. Milsom, Milsom, S.F.C., ''A Natural History of the Common Law''. Columbia University Press (2003) * Milsom, S.F.C., ''Historical Foundations of the Common Law'' (2nd ed.). Lexis Law Publishing (Va), (1981) * * * *


External links


''The History of the Common Law of England, and An analysis of the civil part of the law''
Matthew Hale (jurist), Matthew Hale
''The History of English Law before the Time of Edward I'', Pollock and Maitland
* Selec
Writs. (F.W.Maitland)

''Common-law Pleading: its history and principles'', R.Ross Perry, (Boston, 1897)


by Oliver Wendell Holmes Jr. *
''The Principle of stare decisis''
University of Pennsylvania Law Review#History, American Law Register
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 {{Authority control Common law, Legal history Legal systems