COMMON LAW

COMMON LAW. In 1765, in the first volume of his Commentaries on the Laws of England, William Blackstone explained that the law had two main parts: the statute law and the common law. The common law consisted of the general customs of the realm. It was often called an un-written law because the common-law principles could not be found in any one place, but rather in the decisions of judges in thousands of individual cases. Those customs, built up over the generations by judicial decisions and cataloged by scholars, represented (supposedly) the wisdom of the ages. Blackstone thought such a law was entitled to respect precisely because it represented practices stretching as far back as the human mind could recall. Such immemorial usage testified that the common law was correct. He was so proud of the common law that he called it "the perfection of reason."

Blackstone defined the common law in static terms, which made change difficult. Judges had to follow the precedent of the unwritten common law unless it was patently absurd or unjust—a high standard to meet. Thus many believe, with Francis Bacon, that judges are expounders and not makers of the common law. The common law in Blackstone's England was a body of principles arcane and difficult to understand, for sometimes the rationale underlying rules had been obscured by the mists of time. Nevertheless, it was also based on reason. That obscure but still rational law was difficult to challenge.

The Common Law after the Revolution

By the time of the American Revolution, however, an alternative understanding of the nature of the common law was emerging. Through the study of legal history, introduced by Matthew Hale's History of the Common Law (1713), both English and American lawyers began to understand that the common law evolved and that the law seemed to support a growing emphasis on liberty. An increasing historical consciousness led to views like that expressed by the scientist Joseph Priestley, who emigrated from England to America shortly after the Revolution: "Many things in the present state of the law are unintelligible without the knowledge of the history and progress of it." At the same time, the law became more complex to accommodate increases in commerce. So, faced with a rapidly expanding body of law and a sense that the law had changed in the past, American judges began to think of the common law as an evolving, rather than a static, body of principles. They spoke favorably of recrafting the common law to bring it into line with American values.

That recrafting took place along many fronts, including changing the rules for distribution of property at death. Where English rules gave preference to the eldest male child, Americans distributed property more equally to children (and grandchildren) at death. Across areas from property to contract to tort law, judges reexamined English precedent to see whether it fit American needs. Often those judges spoke about their desire to promote economic growth—for example, by limiting liability of corporations for harm they caused to neighbors—and at other times of the need to promote morality. The law was made more humane to provide at least minimal protection to families from creditors, to wives from abusive or prodigal husbands, and even (on rare occasions) to tenants from landlords. The decisions frequently were phrased in terms of expediency and, in rare instances, in terms of humanity. The Supreme Court Justice Joseph Story wrote in the 1830s about the common law as a mixture of ancient tradition and modern, commercial needs.

Even as conservative judges were acknowledging their ability to remake the law to bring it into line with American views of economy and society, they were careful to portray the common law as evolving slowly. They needed to guard against the image that the common law might effect rapid change, for they needed to preserve the law's majesty. Few maintained the fiction of Blackstone's era that the law had been the same from time immemorial, but many continued to believe that judges had little power in remaking the law. The dominant view of the early nineteenth century was that judges were expounders of the common law and only had the power to make incremental changes.

Questioning the Common Law

Many outside the legal system saw the issue differently, however. Those outsiders saw the common law not as the perfection of reason but as the perfection of nonsense. In speeches and newspapers, outsiders to the legal system—usually adherents of the Democratic Party—attacked the common law as the creation of judges, who were making law to protect property against democracy. These debates occurred at a time when judges were using common-law doctrines to outlaw union organizing, to require the return of fugitive slaves, and to protect merchants and creditors at the expense of consumers and debtors. The critics of the common law ridiculed it as an arbitrary collection of abstruse rules. William Sampson's attack was among the most vitriolic. He thought Americans "had still one pagan idol to which they daily offered up much smokey incense. They called it by the mystical and cabalistic name of Common Law." Some principles were ancient, others recent, but in all instances, the common law sat "cross-legged and motionless upon its antique altar, for no use or purpose but to be praised and worshiped by ignorant and superstitious votaries." Many Americans agreed with Ralph Waldo Emerson's call in his 1836 book Nature for "our own works and laws and worship."

Related to that attack on the common law was a movement to limit the power of judges. Around 1810 the United States Supreme Court prohibited the creation of "common law" crimes; after that, in order to be prosecuted for crime in federal court, the accused had to be charged with violating a law passed by Congress rather than a rule created by a judge. A related drive for codification of other laws would have similarly limited judges' power to make new rules in such areas as contract, torts, property, and court procedure. The codification movement had two parts. The more radical branch, advocated by people like Thomas Jefferson and Sampson, sought to limit judges' discretion; a less radical branch, advocated by moderates and conservatives like Timothy Walker and Hugh Legaré, sought merely to clarify the law that judges applied.

Following the Civil War, the common law was increasingly seen as the creation of its history, and the trend toward decisions that facilitated economic growth seems to have continued. Proponents of the law and economics movement argued toward the end of the twentieth century that judges after the Civil War produced a common law that promoted efficient use of resources; they claimed that judges have long been concerned with creating economically efficient common-law rules. Oliver Wendell Holmes's 1881 book The Common Law was an important part of the postwar recognition that law evolved and that it was the product of historical events, rather than simply the result of reason. Holmes's book, focusing on experience rather than logic, is often seen as the legal analog to Charles Darwin's Origin of Species, focusing on biological processes rather than divine ones.

Holmes helped popularize the understanding that law evolves, but it was left to the legal realists of the early twentieth century, who linked that insight with a systematic critique of the rules that judges announced, to show that judges' own attitudes were central to making the law. Justice Benjamin N. Cardozo's 1921 book The Nature of the Judicial Process acknowledged that judges ought to look to their surrounding society, as well as precedent, for guidance in deciding cases. He engaged in the heresy of treating the "judge as legislator." That view of the common law reached its height in what the U.S. district judge Joseph Hutcheson called the judicial "hunch"—the belief that judges decided cases based on instinct rather than on precedent. Similarly, Karl Llewellyn expressed "rule skepticism," which debunked the priority of rules in judges' decision making. He focused on the importance of the sentiments of judges, lawyers, and the community in deciding cases. The U.S. district judge Jerome Frank took that a step further with his skepticism toward both law and facts. Frank's Law and the Modern Mind (1930), which offered a psychoanalytic interpretation of judges, ridiculed Americans' attachment to what he viewed as the myth that law could be certain. He argued that judges decided cases according to their own personal prejudices and foibles.

Interpretations since World War II

After World War II there was a growing interest in the use of the common law as a tool for social reform. While some academics spoke of the legal process school—the belief that there were methods of common-law and statutory interpretation that were independent of politics—other academics and jurists on both ends of the political spectrum urged judges to use their common-law power to remake the law. Where once judges had wielded the law to limit corporate liability, some began to expand tort law to make it easier for injured parties to recover in areas from hazardous working conditions to dangerous drugs to professional malpractice. Related developments in contract law relieved consumers with little bargaining power from unfair bargains, and changes in landlord-tenant law gave tenants more power. Meanwhile, judges from the right of the political spectrum, particularly after 1980, became increasingly concerned with considerations of economic efficiency. In areas from antitrust to environmental regulation and contracts, judges drew insights from economics to reshape the common law, such as the idea that sometimes monopolies are beneficial to consumers because they reduce costs.

In modern America, the common law continued to be the product of generations of judicial decision, but at the beginning of the twenty-first century it was under-stood to be the product of judge-made innovations. However, a more static conception of the common law has been reemerging in the United States Supreme Court. In several late-twentieth-century lines of cases, the Supreme Court limited the power of the courts to reinterpret the law. In 1993 in Lucas v. South Carolina Coastal Commission, the Court concluded that the state of South Carolina must recognize the traditional property rights of an owner of coastal property, primarily the right to build along the coast. A South Carolina court could not depart from the long-established precedent that property owners had a right to build along the shore. Then, in 1997 in City of Boerne v. Flores, the Supreme Court rejected the argument that Congress had the power to make its own findings about what constituted violations of constitutional rights. It there by protected the right of courts to be the arbiter of what constituted violations of constitutional rights. Together those lines of decisions suggest that the Supreme Court was protecting courts' power under the common law while limiting the ability of judges to alter that law.

Yet every day, as has happened for centuries, judges grapple with new facts and struggle to apply precedent. These judges are using the common-law system, which affords them the power to apply old precedent to new cases and to remake old precedent when necessary.

BIBLIOGRAPHY

Brophy, Alfred L. "Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists." Boston University Law Review 79 (December 1999):1161–1213.

Holmes, Oliver Wendell. "The Path of the Law." Harvard Law Review 10 (1897):457–478.

Horwitz, Morton J. The Transformation of American Law, 1780– 1860. New York: Oxford University Press, 1992.

Hutcheson, Joseph C. "The Judgment Intuitive: The Function of the 'Hunch' in Judicial Decision." Cornell Law Quarterly 14 (1929):274–288.

Karsten, Peter. Heart versus Head: Judge-Made Law in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1997.

LaPiana, William P. Logic and Experience: The Origin of Modern American Legal Education. New York: Oxford University Press, 1994.

Llewellyn, Karl. "A Realistic Jurisprudence—The Next Step." Columbia Law Review 30 (1930):431–465.

Posner, Richard. "A Theory of Negligence." Journal of Legal Studies 1 (1972):29–96.

Sampson, William. Sampson's Discourse, and Correspondence withVarious Learned Jurists, upon the History of the Law. Washington, D.C.: Gales and Seaton, 1826.

Story, Joseph. "Common Law." In Encyclopaedia Americana. Edited by Francis Lieber. Volume 3. Philadelphia: Carey, Lea and Carey, 1829.

Walker, James M. The Theory of the Common Law. Boston: Little, Brown, 1852.

Alfred L.Brophy

See alsoBoerne v. Flores .

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.

further readings

Cantor, Norman F. 1997. Imagining the Law: Common Law and the Foundations of the American Legal System. New York: HarperCollins.

Kellogg, Frederic R. 2003. "Holmes, Common Law Theory, and Judicial Restraint." John Marshall Law Review 36 (winter): 457–505.

Pound, Roscoe. 1999. The Spirit of the Common Law. New Brunswick, N.J.: Transaction.

Strauss, David A. 2003. "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal 112 (May): 1717–55.

cross-references

Adversary System; English Law.

common law system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term "common law" is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation (see statute ), and also to signify that part of the legal system that did not develop out of equity , maritime law, or other special branches of practice.

All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.

Characteristic Features of Common Law

The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.

Development of Common Law

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

Bibliography

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

common law. The origins of the common law lay in the justice of the king, exercised through his curia regis, rather than the customary law exercised in the old communal courts of shire and hundred, or the feudal law exercised by the lord in relation to his own vassals, free and unfree. In the reign of Henry I the justice of the king in his curia was sometimes invoked in favour of a subject, though justice was usually to be sought in the communal or feudal courts.

As overlord of all subjects, the king had a residual right to give justice to all, and as feudal lord of the tenants-in-chief he had the right and the duty to sit in his curia regis to hear their disputes, or to deal with matters relating to their feudal duties. Until the reign of Henry II, royal justice was available to subjects who were not tenants-in-chief only in exceptional cases, since the proper court for matters relating to land or tenure was the court of one's lord and other matters were the province of the court of shire or hundred. However, in the reign of Henry II, access to the king's justice was extended by the enactment of a principle that ‘no man need answer for his freehold land without the king's writ being obtained’. As a result, the writ of right patent would issue to the lord ordering him to hear the case between his free tenants; where there was a dispute between tenants-in-chief, the alternative ‘praecipe’ form of the writ of right would be issued, ordering the defendant to return the disputed land or to appear before the king's justices to explain his refusal. Further, through the development of the Grand assize and the petty assizes, disputants over land would have their case tried by an inquest of neighbours who gave a verdict on oath before the royal justices. As these royal writs and particularly the petty assizes became popular with litigants, so they increasingly sought the justice of the king's courts rather than the local or feudal courts, which slowly declined. This decline was caused by a number of factors, legal, social, and economic, but the influence of royal justice and the effectiveness of its procedures (e.g. petty assizes, trial by jury) led inexorably to the decline of rival systems of justice and the triumph of the king's justice or, as it came to be known, the common law.

The king's justice was dispensed by the itinerant justices of the curia regis and gradually the principles and procedures of the king's law grew from their practice, drawing on the customs of different areas of the country. When the courts of Common Pleas, King's Bench, and Exchequer developed as separate entities, the law they applied was the common law. By the time of Edward I there was in existence a ‘common law’—the law administered in the king's courts throughout the land and therefore ‘common’ to the whole kingdom.

The term ‘common law’ came to be used of the English legal system and, generally, to describe a system where the law is built up through the decisions of the courts. Hence it is used to describe the legal systems of former colonies such as the majority of the USA and the member countries of the Commonwealth, which share the common law tradition. The term is also used to describe those rules and principles of law which are based upon the decisions of the courts as distinct from the rules and remedies which were applied in the Court of Chancery. Finally the term is used to describe rules of law which have been established by the courts as against laws which are formally enacted by Parliament (statute law). See also civil law.

Maureen Mulholland

common law The origins of the common law lay in the justice of the king, exercised through his curia regis, rather than the customary law exercised in the old communal courts of shire and hundred, or the feudal law exercised by the lord in relation to his own vassals. As overlord of all subjects, the king had a residual right to give justice to all, and as feudal lord of the tenants‐in‐chief he had the right and the duty to sit in his curia regis to hear their disputes. Until the reign of Henry II, royal justice was available to subjects who were not tenants‐in‐chief only in exceptional cases. However, in the reign of Henry II, access to the king's justice was extended by the enactment of a principle that ‘no man need answer for his freehold land without the king's writ being obtained’. As these royal writs became popular with litigants, they increasingly sought the justice of the king's courts rather than the local or feudal courts, which slowly declined.

The king's justice was dispensed by the itinerant justices of the curia regis. When the courts of Common Pleas, King's Bench, and Exchequer developed as separate entities, the law they applied was the common law. By the time of Edward I there was in existence a ‘common law’—the law administered in the king's courts throughout the land and therefore ‘common’ to the whole kingdom.

The term ‘common law’ came to be used of the English legal system and, generally, to describe a system where the law is built up through the decisions of the courts. The term is therefore used to describe rules of law which have been established by the courts as against laws which are formally enacted by Parliament (statute law).

Common Law is the body of judge‐made law that was administered in the royal courts of England (King's Bench, Common Pleas, Exchequer, and Exchequer Chamber)—in contrast with other bodies of English law administered in different courts, such as equity (see Injunctions and Equitable Remedies), admiralty, canon law, and the customary law of the borough and manorial courts. William Blackstone described the common law as the general customary law of the realm as interpreted by the royal judges, the “living oracles” of the law. The phrase “common law” is sometimes used in contradistinction to “civil law,” which describes the code‐based legal systems of continental Europe (and nations influenced by Europe) that descend ultimately from Roman law.

The common law was received in the American colonies and adopted as the basis of American legal systems after the Revolution in the state and federal constitutions. The Supreme Court is a common‐law court. The Court early held, however, that there is neither a federal common law of crimes (United States v. Hudson and Goodwin, 1812) nor a federal civil common law (Wheaton v. Peters, 1834). In American practice, the common law is one of two legal systems (the other being equity), now merged in all jurisdictions including the federal, that are the basis of the American legal order.

William M. Wiecek

com·mon law • n. the part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law. ∎  the body of English law as adopted and modified separately by the different states of the U.S. and by the federal government.Compare with civil law. ∎  [as adj.] denoting a partner in a marriage by common law (which recognized unions created by mutual agreement and public behavior), not by a civil or ecclesiastical ceremony: a common-law husband. ∎  [as adj.] denoting a partner in a long-term relationship of cohabitation.

common law Legal system developed in England and adopted in most English-speaking countries. Distinguished from civil law, its chief characteristics are judicial precedents, trial by jury and the doctrine of the supremacy of law. Based originally on the King's Court, “common to the whole realm”, rather than local or manorial courts, it dates back to the Constitutions of Clarendon (1164). It is the customary and traditional element in the law accumulating from court decisions. Swift changes in society and public opinion have resulted in a proliferation of statutes that have come to supersede common law. See also Roman law