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The common law forms a major part of the law of those countries of the world with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting precedent derived from centuries of judgments by working jurists. There are three important connotations to the term. Many important areas of law are governed primarily by common law. For example, in England and Wales and in most states of the United States, the basic law of contracts and torts does not exist in statute, but only in common law. In almost all areas of the law, statutes may give only terse statements of general principle, but the fine boundaries and definitions exist only in the common law. To find out what the law is, one has to locate precedential decisions on the topic, and reason from those decisions by analogy.
History of the common law Common law originally developed under the inquisitorial system in England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practised in common law courts is known as the adversarial system; this is also a development of the common law. Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems. Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favour when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint. Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws. As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens. In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation, including injunctive relief) survived well into the 20th century in many jurisdictions. The United States federal courts procedurally separated law and equity until they were combined by the Federal Rules of Civil Procedure in 1938 - the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, under two separate sets of procedural rules. This became problematic when a given case required both money damages and injunctive relief. Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court. Common law legal systems The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law. The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system. The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960's) and procedure (the Federal Rules of Civil Procedure in the 1930's and the Federal Rules of Evidence in the 1970's). Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems. The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth 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 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.) The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws 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 original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British 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 recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth 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. The United States federal government (as opposed to the states) has a variant on a common law system. The courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(a) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(b) above). Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law."). However, there are still some situations where United States federal courts may be permitted to create federal common law rules; see e.g. 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 that is one of the handful of federal common law actions that survives today), see also 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). Basic principles of common law Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practised in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practised in England only after that date. By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute existation available are limited to those outlined 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 (compare judicial activism). Where a tort is rooted in common law, then all damages traditionally recognized historically 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. Works on the common law The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law. While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines. 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 | ||||||||
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