Common Law (Anglo-American)

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COMMON LAW (Anglo-American)

The common law is a system of principles and rules grounded in universal custom or natural law and developed, articulated, and applied by courts in a process designed for the resolution of individual controversies. In this general sense, the common law is the historic basis of all Anglo-American legal systems. It is also an important element in the origin and plan of the United States Constitution.

Though sometimes characterized as "unwritten" in reference to their ultimate source, the principles and rules of the Anglo-American common law are in fact found in thousands of volumes of written judicial opinions reporting the grounds of decision in countless individual cases adjudicated over the course of centuries. The process that produced this body of law has three important aspects. First, common law principles and rules derive their legitimacy from the adversary process of litigation. They are valid only if they are holdings, that is, propositions necessary to the resolution of actual controversies. Second, the common law is applied through a characteristic reasoning process that compares the facts of the present case to the facts of earlier cases. The holdings of those earlier cases are precedents, which must be followed unless their facts can be distinguished or unless they can be overruled because their grounds are deemed unsound in light of changing social conditions or policy. In the latter situation, or if no existing precedent is applicable, a new rule may be fashioned from the logic of related rules or underlying principle. Third, the common law is a process in the procedural sense. Litigation is governed by rules designed to shape issues of fact and law so that a case may be fairly and efficiently presented to and decided by the jury, the traditional mode of trial.

The principles and rules of the common law grow and change within this threefold process at the initiative of parties to litigation as they bring forward issues falling outside, or challenging, existing precedents. The common law may also be changed by legislative enactment, but in Anglo-American countries legislation is relied on chiefly to supplement or revise or codify the common law in specific situations.

The Anglo-American common law evolved from decisions of the three great English courts of King's Bench, Common Pleas, and Exchequer, which were firmly established by the end of the thirteenth century. These courts, though created under the royal prerogative, became effectively independent by virtue of their ancient origins and the prestige and life tenure of their judges.

By the time of the american revolution, two strands were apparent in the English common law. The private law, which developed in actions between subjects, included complex doctrines of property, contract, and tort appropriate to a sophisticated landed and commercial society. The public law, product of actions in which the king was a litigant, consisted of rules defining and limiting his political and fiscal prerogatives, defining criminal conduct as a reflection of his role as peacekeeper, and establishing a series of procedural rights accorded to the criminally accused. In the largely unwritten English constitution, Parliament as supreme sovereign had power to alter or abolish even the most fundamental common law rules, but by convention basic governmental institutions and individual rights were ordinarily beyond legislative change.

The English common law had by 1776 been received in the American colonies. The full array of English law books was the source of common law principles and rules, and the courts followed the common law process. Though the colonists argued otherwise, the English view was that colonial reception of the common law was a matter of grace, not right. In legal theory, the colonies, as the king's dominions, were directly governed by the prerogative, free of common law constraints. Colonial governmental powers were expressly granted and defined by charter or statute. King and Parliament, when England's interests demanded, would set aside rights guaranteed by the common law. As the declaration of independence shows, the Revolution was in part fought to rectify violations of charter grants of legislative and judicial power and invasions of individual rights such as trial by jury and freedom from unreasonable search and seizure.

In reaction to the prerevolutionary experience, the people of the United States asserted sovereignty through the federal and state constitutions, under which the executive, legislative, and judiciary were separate branches subject to the written fundamental law. The constitutions, however, were adopted against a common law backdrop. The states had expressly received the common law, assuming that their courts would develop it through application of the common law process. The federal Constitution contained no express reception provision, but it did authorize Congress to establish federal courts with jurisdiction over cases arising under federal law and between citizens of diverse citizenship. Once the federal courts were established, important and difficult questions arose concerning their power to develop a federal common law.

The result of two centuries of learned disputation is that today there is little federal common law. The Supreme Court in erie railroad v. tompkins (1938) settled the most enduring controversy by holding that in diversity-of-citizenship cases federal courts must apply the common law as though they were courts of the states where they sit, overruling Justice joseph story's famous contrary decision in swift v. tyson (1842). Earlier the Court had concluded, as due process might have required, that there was no federal common law of crimes, even where federal interests were involved. In civil matters affecting federal interests the Court has held that there is no general federal common law, but the federal courts may articulate common law rules to supplement a comprehensive federal statutory scheme or implement an exclusive jurisdiction. These results are consistent with the basic premise of federalism that the national government is one of limited powers and other powers are reserved to the states, or to the people.

While the federal Constitution did not adopt the common law as a general rule of decision, many of its specific provisions were of common law origin. In its delineation of the separation of powers, the Constitution incorporated common law limitations upon the prerogative and Parliament which had been honored in England and disregarded in the colonies. The bill of rights, adopted in part because of doubts about the existence and efficacy of a federal common law, codified specific common law procedural rights accorded the criminally accused. It also incorporated common law protections of more fundamental interests, including that basic guarantee of reason and fairness in governmental action, the right to due process of law.

Most important, the common law process has enabled the federal judiciary to attain its intended position in the constitutional plan. Chief Justice john marshall's opinion in marbury v. madison (1803), asserting judicial power to review legislation and declare it unconstitutional, was founded on the common law obligation of courts to apply all the relevant law, including the Constitution, in deciding cases. A declaration of unconstitutionality in one case is effective in other similar situations because of the force of precedent. In refining Marbury 's principle, the Supreme Court more recently has developed the doctrine of justiciability, designed to establish in constitutional cases the existence of a truly adversary case or controversy, to which decision of a constitutional issue is necessary. Together, these rules, by proclaiming that the federal courts are confined to the traditional common law judicial role, provide both legitimacy and effectiveness to court enforcement of the Constitution's limits upon the powers of the other branches and the states.

L. Kinvin Wroth


Goebel, Julius, Jr. 1971 Antecedents and Beginnings to 1801. Volume 1 of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.

Llewellyn, Karl N. 1960 The Common Law Tradition: Deciding Appeals. Boston: Little, Brown.

Plucknett, Theodore F. T. (1929) 1956 A Concise History of the Common Law. Boston: Little, Brown.

Tribe, Laurence H. 1978 American Constitutional Law. Mineola, N.Y.: Foundation Press.