common law

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Common Law

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.

The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court.

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.

Cross-references

Adversary System; English Law.

common law

n. the traditional unwritten law of England, based on custom and usage which developed over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror arrived in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English Common Law, much of which was by custom and precedent rather than by written code. By the 14th Century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana which is still influenced by the Napoleonic Code. In some states the principles of common law are so basic they are applied without reference to statute.

common law

1 the law developed by the common law courts as being common to all the Crown's subjects, as distinct from equity.

2 a general name for Anglo-American case-based systems, as opposed to civilian code-based systems.

COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common.

References in periodicals archive ?

Article 19 suggests that, whenever possible, commanders should inform the enemy of their intent to attack and give noncombatants a chance to escape before the attack begins, though the next statement says that surprise is sometimes a military necessity and "it is no infraction of the common law of war to omit thus to inform the enemy.

110) This simple insight explains his use of the phrase "the common law of war" in the Code.

The customary restrictions of honorable warfare constrained sovereign states in public wars by virtue of the law of nations; those same customary restrictions of honorable warfare constrained both parties of a civil war by virtue of the common law of war, which applied equally to governments and rebel forces who organized themselves as belligerent forces.

The common law of war

Does it mean the common law as it stood at the time of the Declaration of Independence, or as it stood when our statute was enacted, or are we to understand the common-law system, in its entirety, including all judicial improvements and modifications in this country and in England, to the present time, so far as applicable to our conditions?

47) Yet, as noted above, that might be explicable when one takes account of the fact that at least until 1963 'our common law told England's story'.

The ties of our common law to England began to formally loosen, as noted, in 1963.

Paul Finn's, "Statutes and The Common Law."

In addition, the common law was not only customary law but also the product of many generations of jurists who made it over thousands of cases.

The common law was excellent because it was a perfection of many lawyers' professional reason, which had accumulated since time immemorial.

Common law constitutionalism and its counterpart in Japan

Concepts are in effect the building blocks of common law doctrine, its

legitimacy--a concern that the common law takes very seriously.

Structure and value in the common law

Understanding why Leoni (and Hayek later) believes the common law to be more certain and predictable--despite its unwritten characteristics--derives from recognizing that the common law is a conceptual system, as opposed to legislation, which is a verbal system of commands.

Having contrasted the ideal forms of legislation and common law, Leoni also admits that this jurisprudential revolution has taken its toll on the common law, such that today's common law has taken on many of the unfortunate characteristics of legislation.

common law

Common Law

Further readings

Cross-references

common law

common law